IN THE FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY
MARTIN CJ, MILDREN AND BAILEY JJ
CATCHWORDS:
Criminal
law - appeal - sentencing - mandatory sentence for property
offence - Sentencing Act 1995 (NT) s78A.
Constitutional law - separation
of powers between executive and judiciary -
whether Sentencing Act 1995 (NT) s78A constitutes interference by executive in
judicial
discretion.
Criminal law - sentencing - is mandatory sentence "cruel and unusual
punishment".
Words and phrases "cruel and
unusual punishment".
Cases:
Wake v NT [1996] NTSC 56; (1996) 5 NTLR 170, (1996) 109 NTR 1
Leask v Commonwealth [1996] HCA 29; (1996) 140 ALR 1
Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52
Deaton v Attorney-General [1963] IR 170
DARWIN, 19-20 August 1997 (hearing), 26 September 1997 (decision)
#DATE 26:9:1997
REPRESENTATION:
Counsel:
Appellant: C McDonald QC, P McNab
Respondent: T Riley QC, M Carey
Attorney-General
for the NT (intervening): D Jackson QC; S Southwood
Attorney-General for WA (intervening): J Meadows QC, J Thomson
Solicitors:
Appellant: KRALAS
Respondent: Solicitor for the NT
Attorney-General for the NT: Solicitor for the NT
Attorney-General for
WA: Solicitor for the NT as Town Agent for the Crown
Solicitor
Order: appeal dismissed.
MARTIN CJ
The central issue
in this appeal is whether his Honour the Administrator
can validly assent to a law imposing a duty on the courts, after a finding
of
guilt of certain offences, to record a conviction and impose a sentence of
imprisonment, when the assent has purportedly been
given under s7(2)(a) of the
Northern Territory (Self Government) Act (Cth) 1978 ("the Act"). The term of
the imprisonment to be imposed
is bound by a minimum ascertained by reference
to factors set out in the legislation, and the maximum fixed by provisions of
the
kind commonly experienced.
But between the two extremes, the courts are unfettered as to the
discretion which may be exercised
regarding the appropriate term. The term may
not be suspended wholly or in part, nor may the court fix a period prior to
which the
prisoner will not be eligible to be released on parole ( Trenerry v
Bradley , Full Court of the Supreme Court of the Northern Territory,
unreported 20 June 1997).
Details of the legislation and facts and circumstances giving rise to the
appeal are set out in the
reasons for judgment of Mildren J. and I need not
repeat them. I agree with the orders proposed. However, since my reasons
appear
to diverge from his in some respects, it is better that I express them,
albeit briefly.
In Wake v The Northern Territory of Australia
and Ors [1996] NTSC 56; (1996) 5 NTLR 170,
the Full Court at pp177-178 dealt with the power of the Legislative Assembly
to make laws for the peace, order and good government
of the Territory. It is
a plenary power ( Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166
CLR 1 at p10; Capital Duplicators Pty Ltd and Anor v Australian Capital
Territory & Anor [1992] HCA 51; (1992) 177 CLR 248 at pp281-282 and R v Toohey; Ex parte
Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 279). In the judgment of Martin
CJ. and Mildren J. it was noted that there was no authority to support the
suggestion that legislative
power is subject to some other restraints by
reference "to rights deeply rooted in our democratic system of government and
the common
law" ( Union Steamship Co of Australia Pty Ltd v King ). There has
been no authority along those lines in the meantime. The power
is subject to
the Commonwealth Constitution, and the Act itself, for example, the
requirement for the assent of the Administrator
or the Governor-General ss6, 7
and 8. In this case it is an agreed fact that it was his Honour who assented
to the legislation upon
the basis of advice to him that it was a proposed law
making provision only in respect of a matter specified in the Regulations
under
s35 of the Act. In so far as it is suggested that the legislation here
in question affects any abrogation of fundamental rights,
then as in Wake, the
language is clear and unambiguous and thus such an abrogation is within the
legislative competence of the Territory
Parliament ( Coco v The Queen [1994] HCA 15; (1994)
179 CLR 427 at 437). In Wake at p184 it was said that there was no valid
reason for reading down the width of the authority contained in subr4(1)
"by
distinguishing between the words "in respect of" appearing therein and the
words "with respect to" appearing in s51 of the Commonwealth
Constitution". It
was in that context that the majority said that what was required in
considering heads of authority under subr4(1)
is a "relevance to or connection
with a subject matter assigned" or a "substantial connection" between the law
and the relevant head
of power.
The question is whether the impugned law is for the peace, order and good
government of the Territory in respect of
a matter specified in the
Regulations. In approaching that task, I consider that the law in relation to
the validity of legislation
enacted by the Commonwealth Parliament for the
peace, order and good government of the Commonwealth with respect to the
subjects
set out in s51 of the Constitution may be applied by analogy.
Accordingly, the Territory law is within power "if the acts, facts,
matters or
things upon which it operates fall within the description of one or more of
the heads of power" per Dawson J. in Leask
v The Commonwealth [1996] HCA 29; (1996) 70 ALJR
995, and the reference to the observations of McHugh J. in Re Dingjan; Ex
parte Wagner & Anor [1995] HCA 16; (1995) 183 CLR 323 at 368-369. See also the discussion
and the authorities referred by Brennan J. in Cunliffe & Anor v The
Commonwealth of Australia
[1994] HCA 44; (1993-1994) 182 CLR 272 at 314-315. The law
challenged in these proceedings prescribes a set of circumstances in which the
courts are required to convict
and sentence a particular class of criminal
offender to imprisonment for a minimum term. It deprives the courts of a range
of discretionary
powers otherwise available (see the Sentencing Act (NT) 1995
s7). The circumstances invoking the conviction and sentence are a finding
of
guilt, in respect of which the courts' functions are not impaired, and the
number of times upon which the offender has been before
found guilty of any of
the prescribed offences.
In its operation the law will be harsher on some offenders than the law
prior
to its enactment. In so far as the minimum term is required to be
imposed, it does not discriminate in relation to many matters relevant
to
sentencing, such as the value of the goods stolen or damaged, the
circumstances in which the offence is committed or the circumstances
of the
offender. The intention of the Parliament is clear. It imposes a duty on the
courts, and, in my opinion, the duty here imposed
is within the competence of
Parliament. That proposition is firmly established in Australia by the
decision of the High Court in
Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52. There is
nothing in the reasons for the decision in that case that would indicate that
they were in any way dependent upon the nature
of the legislation there in
question. Barwick CJ. at p58:
"It is beyond question that the Parliament can prescribe such penalty
as it
thinks fit for the offences which it creates. It may make the penalty absolute
in the sense that there is but one penalty which
the court is empowered to
impose and, in my opinion, it may lay an unqualified duty on the court to
impose that penalty. The exercise
of the judicial function is the act of
imposing the penalty consequent upon conviction of the offence which is
essentially a judicial
act. If the statute nominates the penalty and imposes
on the court a duty to impose it, no judicial power or function is invaded:
nor, in my opinion, is there any judicial power or discretion not to carry out
the terms of the statute."
See also Menzies J.
at p64-65, Owen J. at p67 and Walsh J. at p68. Windeyer
J. and Gibbs J. agreed with the other members of the court.
This is a
law in respect of courts including the procedure of courts, a
matter specified in the Regulations. The legislation simultaneously
negates
jurisdiction previously conferred by the Parliament on courts and imposes a
jurisdiction which the courts did not previously
have in relation to property
offences, that is, to inflict a sentence of imprisonment where it might not be
otherwise warranted.
But there is nothing unusual about a Parliament imposing
a duty on courts to impose a particular penalty in prescribed circumstances.
It is not unique to the Northern Territory.
In my opinion this legislation rests upon a "non-purposive" power in so far
as it
is connected with "Courts", but to say that the law is in respect of
courts is not to assert that it is only in respect of courts.
There can be no
objection to the law on that ground.
As Stephen J. said in Actors and Announcers Equity Association of Australia
and Others v Fontana Films Pty Ltd [1982] HCA 23; (1981-1982) 150 CLR 169 at 192:
"To recognize that a law may possess a number of quite disparate characters
is, then, to accept reality. Few laws will
involve only one element. Even the
simplest form of law will commonly contain two elements when it forbids,
regulates or mandates
particular conduct on the part of a particular class of
person ... Many laws will, because of the relatively complex concepts to
which
they give effect, involve still further elements. These elements may, of
course, all bear one and the same character. However,
where they do not, any
search for a single character by which to describe the law is likely to prove
fruitless.
Were constitutional
dogma to require such a search to be pursued, the
difficulty in choosing between competing elements might readily lead different
minds, perhaps influenced by quite subjective considerations, to varying
conclusions as to the dominant character of a law. But to
accept as
constitutionally permissible the fact that a law may bear several characters,
each as valid as the other because each is
reasonably capable of fairly
describing the law as a whole, disposes of the need to rely upon what may
prove to be quite subjective
reasons for selecting one particular description
only. With the disappearance of subjective criteria, the process of
characterization
then becomes less uncertain and more a matter of logic than
of idiosyncratic assertion."
It seems to me that this law is also in
respect of "maintenance of law and
order and the administration of justice". It is not correct to say that to be
valid a law under
this heading must be a law which falls within the phrase as
a whole. A law which falls to be considered either as in respect of the
"maintenance of law and order" or in respect of "the administration of
justice" would be valid notwithstanding that it did not touch
upon the other.
There is no necessity to endeavour to identify with any degree of precision
what law or laws may be said to be in
respect of the maintenance of law and
order. In my opinion the law in respect of maintenance of law and order is
purposive. It is
a head of power which is to be employed to fulfil a purpose.
In such a case it is suggested in Leask by Brennan J. at p999 that:
"... the
existence of a connection may be determined more easily by comparing the
purpose of the law and the purpose of the power";
Dawson J. at p1007 "... a
court must ask whether it is a law for the specified purpose, and the court
may have to inquire into whether
the law goes further than is necessary to
achieve that purpose. That is an exercise in proportionality". Toohey J. at
p1012 indicated
that he did not accept those views saying: "... the place of
reasonable proportionality in the characterisation of a law is where
there is
a tension between two operative principles", adding at p1013 that: "If
reasonable proportionality were to become a general
touchstone of
constitutional power, the Court would be drawn inexorably into areas of policy
and of value judgments". McHugh J. at
p1013 said that: "If there is a
sufficient connection between a subject of federal power and the subject
matter of a federal law,
it matters not that the federal law is harsh,
oppressive, or inappropriate or that it is disproportionate or ill adapted to
obtain
the legislative purpose." His Honour would not appear to have
distinguished between purposive and non-purposive powers; similarly,
Gummow J.
does not appear to venture upon the ground of the test of validity to be
applied in relation to what is described as a
purposive power, there was no
need to do so. Kirby J. at p1024 remarked that the proportionality test "has
not enjoyed universal
favour" but adds that "Distinctions have been drawn
(repeated in this case) between the value of the concept in cases where the
constitutional
power is conferred in purposive terms, cases where the power is
expressed as restricted by a limitation and other cases".
Adopting
for these purposes the test propounded by Dawson J. at p1007, I
answer the question whether this law is for the maintenance of law
and order,
yes. I do not think it necessary to enquire into whether the law goes further
than is necessary to achieve that purpose.
It is a question not capable of
being answered by the court in these proceedings. Penalising offenders is
undoubtedly an instrument
for the maintenance of law and order. Punishment is
generally regarded as being fixed by the courts with reference to a number of
factors, including retribution, deterrence, both personal and general, and
rehabilitation, all with the ultimate objective of protecting
the community.
It cannot be maintained that the statutory scheme requiring compulsory
imprisonment will not operate so as to deter
those first tempted to commit a
property offence from committing it, nor that it will not deter a person once
or more punished for
such an offence from doing the same again. Thus it cannot
be maintained that the law is not a law for the maintenance for law and
order.
MILDREN J:
This is an appeal against sentence pursuant to the provisions of the
Justices Act .
On 27 June 1997 in the Katherine Court of Summary Jurisdiction, the
appellant pleaded guilty to one charge that she unlawfully
entered the Wanda
Inn at Top Springs with intent to commit an offence, mainly, to steal contrary
to s213 of the Criminal Code and
to one charge that she did steal a can of
Victoria Bitter beer valued at $2.50, contrary to s210 of the Criminal Code .
The facts
as accepted by the learned Magistrate were that on the morning of
Thursday the 13th of March 1997, the appellant and two co-offenders,
Rita
Danby and Michael Wynbyne, went to the Wanda Inn at Top Springs. One of the
co-offenders used a metal bar to make a hole in
the side entrance doorway to
the bar area, before reaching in and unlocking the door. All three persons
then entered the premises.
Rita Danby removed a can of Victoria Bitter beer
from a refrigerator. On hearing a dog barking, the appellant, having become
frightened
of the dog, left the premises and sat outside nearby whilst Danby
and Michael Wynbyne remained inside.
The co-offenders were
discovered by the licensee who locked them in a
toilet. Subsequently the appellant returned to the premises and she also was
detained
by the licensee and locked in the toilet. When the police arrived,
due to her apparent intoxication, the appellant was taken into
protective
custody pursuant to the provisions of s137 of the Police Administration Act .
She was conveyed to the Kalkaringi Police Station and there placed in the
cells.
Later that morning, the appellant, having
spoken with police, was charged
and subsequently bailed for these offences. The property damage was estimated
at $80 and restitution
was sought against the appellant in the sum of $28,
which she paid.
The appellant was born on the 18th of April 1974 and was
23 years of age at
the time of the offences. She lived and worked at Kalkaringi which is a
settlement some 763 kilometres by road
from Darwin, in the Victoria River
district. She was employed at the Kalkaringi Women's Centre and had been so
employed since she
left school. She was single, although she had a two year
old son in respect of whom she was the primary care-giver. She was born
in
Kalkaringi and had lived there all her life. Her first language is Gurindji,
English being very much a second language. The co-offender,
Michael Wynbyne,
is one of her older siblings.
The appellant was educated at the Kalkaringi School to year 6/7 and she
then went
to Yirrara College for one year. She returned to Kalkaringi at the
age of eighteen and had since then been employed by the women's
centre. Her
employment was organised through the CDEP Scheme. She received $285 per
fortnight. The appellant had no prior convictions
and did not normally consume
alcohol. The offence on this occasion occurred in the context of her having
been drinking in the vicinity
of the Wanda Inn with relatives and immediate
family.
A report from the Council Clerk of the Daguragu Community Development
Council
was tendered in support of her claim to be a person of good character
and in support of her work history, which His Worship accepted.
On the 1st of July 1996 the Sentencing Act 1995 came into operation (the
principal Act). The principal Act consolidated the law relating to the
sentencing of offenders in the Northern
Territory and provided for a number of
sentencing guidelines (s5) and sentencing options (s7). In general terms, the
principal Act
may be said to reflect sentencing principles which have been
developed by the courts over many years. In addition, provision was
made for a
number of new sentencing options not previously available to the courts. S7 of
the principal Act empowered courts, upon
a finding of guilt, and subject to
any other specific provision relating to the offence, to impose what are
described as "sentencing
orders" ranging from, at one end of the scale,
ordering the dismissal of the charge without recording a conviction, to
recording
a conviction and ordering that the offender serve a term of
imprisonment at the other. S5 of the principal Act did not seek to interfere
in any way with the traditional judicial discretion which courts in this
Territory have enjoyed in imposing sentence. Indeed s5(1)(a)
specifically
provided that "The only purposes for which sentences may be imposed on an
offender are - (a) to punish the offender
to an extent or in a way that is
just in all of the circumstances;".
The Sentencing Amendment Act No. 2. 1996 , (the amending
Act) was
introduced in the Legislative Assembly on the 13th of August 1996 as a draft
bill some seven weeks after the commencement
of the principal Act. The
amending Act was assented to on the 31st of December 1996 and came into
operation on the 8th of March 1997.
The amending Act inserts after Division 5
of Part 3 of the principal Act, a new Division 6 which provides for compulsory
imprisonment
for certain defined property offences, and for punitive work
orders.
S78A(1) provides:
"Where a courts finds an offender
guilty of a property offence, the court
shall record a conviction and order the offender to serve a term of
imprisonment of not less
than 14 days."
In Trennery v Bradley (unreported, 20th June 1997) a Full Court of this
Court unanimously held that on the true
construction of s78A and s78B of the
amending Act a court is precluded from making orders wholly or partially
suspending a term of
imprisonment ordered to be served under s78A or from
imposing a home detention order. The majority of the Court (Martin CJ and
Angel
J) further held that the effect of these provisions was to prevent a
court from exercising those powers regardless of the length
of the sentence
ordered, and that if a court were to impose a sentence of 12 months or more in
circumstances where the principal
Act would otherwise require the court to fix
a non-parole period, no non-parole period may be fixed.
In Trennery v Bradley the
constitutional validity of the amending Act was
not called into question.
It was conceded before the learned Magistrate and before
us that both of
the offences in respect of which the appellant had pleaded guilty were
property offences as defined, and that if
s78A(1) was valid, the learned
Magistrate had no alternative but to record a conviction and impose a minimum
sentence of not less
than 14 days imprisonment. However, counsel for the
appellant submitted to the learned Magistrate that the provisions of s78A were
invalid and requested the learned Magistrate to state a special case to the
Supreme Court pursuant to s162(1) of the Justices Act . The proposed stated
case challenges the validity of s78A. After hearing submissions from counsel,
His Worship declined to state a special case. Subsequently His Worship heard
further submissions
in relation to penalty. His Worship observed that had the
offences been committed before the 8th of March 1997 it was likely that
he
would have imposed non-custodial sentences. His Worship then convicted the
appellant on both counts and sentenced the appellant
to 14 days imprisonment
on each count to be served concurrently. From this decision, the appellant has
appealed to this court. Pursuant
to s21(1) of the Supreme Court Act the appeal
has been referred to the Full Court.
The grounds of appeal relied upon by the appellant are as follows:
"1 That
the learned Magistrate erred in law by finding that the Sentencing
Amendment Act (No. 2) 1996 ("the Act") and in particular s78A
thereof was
valid under the Northern Territory (Self-government) Act 1978 (Commonwealth)
and the Regulations made thereunder.
2 The learned Magistrate erred in law by finding that the Act and, in
particular
s78A thereof was valid and operative notwithstanding the operation
and effect of the Judiciary Act 1903 (Commonwealth).
3 The learned Magistrate erred in law in sentencing the appellant to 14
days mandatory imprisonment, because
the Act, in particular s78A thereof was
invalid or inoperative.
4 The learned Magistrate erred in law in the exercise of his
discretion in
refusing to reserve a question of law and to state a special case for the
opinion of the Supreme Court under s162 of
the Justice Act (NT) in respect of
all or of any of the questions of law specified in the draft special case
which was before him
in the proceedings." The relevant provisions of the
amending Act have been set out and discussed in two previous decisions of this
court, namely Trennery v Bradley (supra), and McMillan v Pryce (unreported
20th of June 1997) and it is unnecessary to repeat the
analysis made of the
relevant provisions in those judgments.
Ground 1 of the Appeal
The threshold question raised by this
ground of the appeal is whether the
amending Act, and in particular s78A thereof, is a law making provision only
for or in relation
to a matter specified under s35 of the Northern Territory
(Self-Government) Act 1978 of the Commonwealth. The appellant's submission is
that the Administrator of the Northern Territory did not validly assent to the
amending Act because he did so pursuant to s7(2)(a) of the Self-Government Act
; that this was only lawful if the proposed law made
provision only for or in
relation to a matter specified under s35 of the Self-Government Act , and
there was no matter specified
under s35 of the Self-Government Act in respect
of which the amending Act made provision. The legislative background to this
argument
was the same as that discussed in Wake and Gondarra v Northern
Territory of Australia and Another [1996] NTSC 56; (1996) 5 NTLR 170 at 179-181. As was said
in that case at p181:
"The first critical question therefore is whether the Act is only for or in
relation
to one or more of the matters set out in reg 4(1) of the
Self-Government Regulations . If it is, the assent was validly given. If
it is
not, other considerations arise."
Counsel for the appellant, Mr McDonald Q.C. submitted that this question
should be answered
in the negative. Counsel for the Attorney-General for the
Northern Territory, Mr Jackson Q.C., and for the respondent, Mr Riley Q.C.
submitted that the relevant provisions of the amending Act were validly
assented to because they had a relevance, to or connection
with three heads of
power set out in reg 4(1) of the regulations, namely "Maintenance of law and
order and the administration of
justice", "Courts (including the procedures of
the courts ...)" and "Correctional services".
In my opinion the principal purpose
of s78A(1) is to require courts, upon
reaching a finding of guilt in respect of a certain defined types of property
offences, to
both proceed to conviction and as well to impose a minimum
sentence of imprisonment of not less than 14 days to the exclusion of
any
other lesser sentencing order. In Wake (supra, at 182, 185-6) all members of
the Court were of the view that a law which proscribes
conduct and makes it
criminal is a law in relation to or in respect of the maintenance of law and
order. It was submitted on behalf
of the appellant that the expression
"Maintenance of law and order and the administration of justice" is a
composite phrase and that
therefore the proposed law must have a relevance or
substantial connection to both of the composite elements of the phrase. That
submission is not open in the light of the reasoning in Wake . Moreover I do
not consider that the word "and" should be given the
construction contended
for by the appellant. Sub-regulation 4(3) of the Northern Territory
(Self-Government) Regulations provides
that "subject to sub-regulations (2)
and (4), the inclusion of any matter in sub-regulation (1) (whether with
another matter or a
separate matter) does not derogate from or affect the
generality of any other matter specified in that sub-regulation". I accept
the
submission of Mr Jackson Q.C. that the words in parenthesis indicate that
matters may be grouped together without derogating
from or affecting the
generality of any other matter specified in the group. There is also a further
difficulty with the appellant's
argument. As Mr Jackson Q.C. submitted, if a
similar approach were to be adopted with other heads of power such as "flora
and fauna"
and "estates and trusts," it would be necessary, for a law to be
validly given assent, for the law to be for or in relation to both
flora and
fauna, or both estates and trusts. Such an approach would seem extremely
unlikely. In any event, Mr Jackson Q.C. submitted
that a law imposing a
mandatory minimum penalty fell within both heads, whether they are to be read
as separate heads or not. Plainly
the power to impose sanctions or penalties
for breaches of the criminal law is a necessary incident to the power to
proscribe conduct.
Without penalties or sanctions, the criminal law would be
ineffective. The same could be said about the power to make laws for the
administration of justice. Indeed in Deaton v The Attorney-General and the
Revenue Commissioners [1963] IR 170 the Supreme Court of Ireland said, at
p183:
".... the selection of punishment is an integral part of the administration
of
justice ..."
The appellant did not seek to challenge the proposition that the
Legislative Assembly could make a law imposing a
mandatory minimum sentence.
Nor did the appellant assert, as I understood the argument, that the
Administrator could not validly
assent to such a law under s7(2)(a) of the
Self-Government Act . The attack seemed to be concentrated upon the
requirement of the
section that a court must record a conviction as well as
impose a mandatory minimum sentence which was said to be an interference
with
the judicial independence of the courts. It is difficult to see how a
statutory requirement that a court must impose a conviction
upon a finding of
guilt is not a law for the maintenance of law and order and for the
administration of justice. Once the necessary
facts have been proven, it is
difficult to see on what basis it could be said the requirement to record a
conviction does not have
the necessary relevance to, or connection with the
subject matter. At common law, a court exercising criminal jurisdiction had no
power not to record a conviction once an offence had been proved: see Richard
Fox and Arie Freiberg, Sentences without Conviction:
from Status to Contract
in Sentencing (1989) 13 Crim. LJ 297 at 298-299.
The appellant's second submission was that the head of power "maintenance
of law and order and the administration
of justice" is truly purposive in
nature and that the law went further than was necessary to achieve the
purpose. Mr Jackson Q.C.
submitted that the relevant head of power was not
purposive at all. Having regard to the observations of Dawson J in Leask v The
Commonwealth [1996] HCA 29; (1996) 70 ALJR 995, especially at 1003-1007, I am of the view
that the relevant head of power is clearly not purposive. At p1003, His Honour
said:
"To say that a law is not reasonably capable of being seen as appropriate
and adapted to achieving an object or purpose within
power or is not
reasonably proportionate to some object or purpose within power is to posit a
proposition or propositions which do
not assist in determining the validity of
the law. The expressions are borrowed from other jurisdictions and their
usefulness is
limited; indeed, it may be thought that they confuse rather than
clarify the processes by which the validity of a law under our constitution
must be determined."
At p1005, His Honour said:
"The fact that the Legislative powers conferred upon the Commonwealth
Parliament
by s51 of the Constitution are expressed to be with respect to
subject matters means a law is within power if the acts, facts, matters
or
things upon which it operates fall within the description of one or more heads
of power ...
Establishing the requisite connection
is often a matter of degree, but once
it is established, it does not matter that the legislature has chosen a means
of achieving
its aim which goes further than is necessary or desirable. That
is a matter for the Legislature."
In Wake , the majority accepted
the validity of the analogy with s 51 of
the Constitution as to the approach to the question of the extent of
ministerial responsibility
by Territory Ministers, and said at 184 that there
was no meaningful distinction between the words "in respect of" appearing in
sub-reg
4(1) of the Self-Government Regulations, and the words "with respect
to" appearing in s51 of the Commonwealth Constitution.
In
Leask , Dawson J at 1007, recognised that, nevertheless, one head of
power under s51 was purposive, viz defence. That is because
that head of power
expands and contracts depending upon the threat to the nation in war or peace.
Mr McDonald Q.C. submitted that
analogously, a power relating to the
maintenance of law and order and the administration of justice relates to
internal security
and is therefore also purposive. But the analogy falls down
because, unlike defence, the power in question does not expand or contract.
The majority of the Court in Leask expressed similar views to that of
Dawson J: see Brennan CJ at 998-999, 1001; Toohey J at
1012-13; McHugh J at
1013-14; Gummow J at 1018. Purposive tests are recognised as relevant in other
situations: first where the power
is expressed in purposive terms. As
explained below, that is not the case here. Secondly where the head of power
is subject to a
constitutional limitation, express or implied, which restricts
the head of power (see for example, Brennan CJ at 1000, Dawson J at
1007).
There is no express limitation, and for the reasons given below in rejecting
ground 2 of the appeal, no implied limitation.
Thirdly, the purpose of the law
sought to be impugned may sometimes be considered to see if the relevant
connection exists between
the law and the relevant head of power, but then the
question is one of connection, not appropriateness or proportionality: see for
example Brennan CJ at 999, McHugh J at 1013-14.
There is nothing in the language of regulation 4 to indicate that the heads
of
power or any of them are purposive; by contrast, the head of power
contained in sub-regulation 4(5)(c) may well be purposive having
regard to the
language of that head of power. Here there is a subject matter and it is
possible to delineate the boundaries of the
power by reference to the subject
matter. Once the relevant law is found to be within the head of power by
reference to its subject
matter no question of proportionality arises, and the
proportionality or appropriateness of the means selected by the Legislative
Assembly to achieve the end in view which the legislation seeks to address is
a matter for it alone. To the extent that Angel J in
Wake adopted the
purposive of test (at page 186) I respectfully disagree with it; no purposive
test was used by the majority of the
court.
Mr McDonald Q.C. also advanced an argument, similar to that advanced in
Wake , that it could not be the case that the
Commonwealth intended to
transfer executive power to the Northern Territory to pass mandatory minimum
sentencing laws where those
laws intruded upon the independence of the
judiciary. It was submitted that the independence of the judiciary had been
intruded upon
because the courts no longer had a power to fix a just sentence
in that the legislature has by s78A(1) preordained in a discriminatory
way a
sentence to be imposed when the circumstances of the case indicate that the
appellant is entitled to be treated differently.
Mr McDonald Q.C. elaborated
upon this by submitting that the infliction of punishment is purposive and
that the measures taken by
s78A(1) of the Amending Act are an extraordinary
intrusion into the court's powers and are not reasonably adapted to achieve
any
legitimate end.
A similar type of argument was presented to the court in Wake and it was
rejected by the majority of the court
at pages 181 following. That is not to
say, however, that the appellant's argument, in so far as it is based upon
interference with
the independence of the judiciary, must be rejected.
However, in my opinion s78A(1) does not interfere with the independence of the
judiciary for the reasons given below.
Accordingly I would dismiss the first ground of appeal.
Ground Two of the Appeal
The second ground of appeal is premised upon an argument that a legislative
direction to the courts both mandating conviction
and sentence violates the
doctrine of the separation of powers.
Assuming a separation of powers doctrine can be found or implied,
a
question I do not find it necessary to decide, it was submitted that a
legislative direction to the courts both mandating conviction
and sentence is
invalid as it intrudes upon the perception of the independence of the
judiciary.
In Chu Kheng Lim v The Minister
for Immigration (1992) 176 CLR 1 at 27
Brennan, Deane and Dawson JJ held, in the context of Ch III of the
Constitution, that:
"There are some functions which,
by reasons of their nature or because of
historical considerations, have become established as essentially and
exclusively judicial
in character. The most important of them is the
adjudgment and punishment of criminal guilt ... In exclusively entrusting to
the
courts ... the function of the adjudgment and punishment of criminal guilt
... the Constitution's ... concern is with substance and
not mere form."
It was submitted that the amending Act impinged directly upon the function
of the courts by directing the court
to perform its judicial functions in a
particular way, namely to convict and detain involuntarily a person in prison
when the circumstances
of the particular case would not objectively call for a
conviction and custodial sentence.
There are a number of authorities
which discuss this type of question in
the context of mandatory minimum sentencing. In Deaton v The Attorney General
and the Revenue
Commissioners , (supra) O'Dalaigh CJ, speaking for the Supreme
Court of the Republic of Ireland, said, at p181:
"It is common
ground that it is for the Legislature, when it creates an
offence, to prescribe what punishment shall attach to the commission of
such
offence. It is also common ground that the Legislature may for a particular
offence prescribe a single or fixed penalty, or
a maximum penalty, or a
minimum penalty, or alternative penalties, or a range of penalties."
And at page 182:
"There is a
clear distinction between the prescription of a fixed penalty
and the selection of a penalty for a particular case. The prescription
of a
fixed penalty is the statement of a general rule, which is one of the
characteristics of legislation; this is wholly different
from the selection of
a penalty to be imposed in a particular case.... The Legislature does not
prescribe the penalty to be imposed
in an individual citizen's case; it states
the general rule, and the application of that rule is for the Courts. If the
general rule
is enunciated in the form of a fixed penalty then all citizens
convicted of the offence must bear the same punishment."
In Palling
v Corfield [1970] HCA 53; (1970) 123 CLR 52, Barwick CJ said at 58-59:
"It is beyond question that the Parliament can prescribe such penalty as it
thinks fit for the offences
it creates. It may make the penalty absolute in
the sense that there is but one penalty which the court is empowered to impose
and,
in my opinion, it make lay an unqualified duty on the court to impose
that penalty. The exercise of the judicial function is the
act of imposing the
penalty consequent upon conviction of the offence which is essentially a
judicial act. If the statute nominates
the penalty and imposes on the court a
duty to impose it, no judicial power or function is invaded: nor, in my
opinion, is there
any judicial power or discretion not to carry out the terms
of the statute. Ordinarily the court with the duty of imposing punishment
has
a discretion as to the extent of the punishment to be imposed; and sometimes a
discretion whether any punishment at all should
be imposed. It is both unusual
and in general, in my opinion, undesirable that the court should not have a
discretion in the imposition
of penalties and sentences, for circumstances
alter cases and it is a traditional function of a court of justice to
endeavour to
make the punishment appropriate to the circumstances as well as
to the nature of the crime. But whether or not such a discretion
shall be
given to the court in relation to a statutory offence is for the decision of
the Parliament. It cannot be denied that there
are circumstances which may
warrant the imposition on the court of a duty to impose a specific punishment.
If Parliament chooses
to deny the court such a discretion, and to impose such
a duty, as I have mentioned the court must obey the statute in this respect
assuming its validity in other respects. It is not, in my opinion, a breach of
the Constitution not to confide any discretion to
the court as to the penalty
to be imposed. Also it is within the competence for the Parliament to
determine and provide in the statute
a contingency on the occurrence of which
the court shall come under a duty to impose a particular penalty or
punishment. The event
or the happening on which a duty arises or for that
matter a discretion becomes available to a court in relation to the imposition
of penalties or punishments may be objective and necessary to have occurred in
fact or it may be the formation of an opinion by the
court or, in my opinion,
by some specified or identifiable person not being a court. The circumstance
that on this happening or contingency,
the court is given or is denied as the
case may be any discretion as to the penalty or punishment to be exacted or
imposed will not
mean, in my opinion, that judicial power has been invalidly
invaded or that judicial power is attempted to be made exercisable by
some
person other than a court within the Constitution."
See also McTiernan J at 62-63, Menzies J at 64-65, Owen J at 67 and Walsh
J
at 68.
In Hinds v The Queen [1977] AC 195; [1976] 1 All ER 353, Lord Diplock,
after referring to the doctrine of the separation of powers, said ([1977] AC
195 at 226; [1976] 1 All ER 353 at 370):
"In the exercise of its legislative power, Parliament may, if it thinks
fit, prescribe a fixed punishment to be inflicted
upon all offenders found
guilty of the defined offence - as, for example, capital punishment for the
crime of murder. Or it may prescribe
a range of punishments up to a maximum in
severity, either with or, as is more common, without a minimum, leaving it to
the court
by which the individual is tried to determine what punishment
falling within the range prescribed by Parliament is appropriate in
the
particular circumstances of this case.
Thus Parliament, in the exercise of its legislative power, may make a law
imposing
limits on the discretion of the judges who preside over the courts by
whom offences against that law are tried to inflict on any
individual offender
a custodial sentence the length of which reflects the judge's own assessment
of the gravity of the offender's
conduct in the particular circumstances of
his case. What Parliament cannot do, consistently with the separation of
powers, is to
transfer from the judiciary to any executive body ... a
discretion to determine the severity of the punishment to be inflicted upon
an
individual member of a class of offenders."
This passage was cited with approval by the Privy Council in Ali v R and
Rassool
v R [1992] 2 All ER 1 at 7.
In Liyanage v The Queen [1967] AC 259, Lord Pearce, after referring to the
fact that certain Acts passed by the Parliament
of Ceylon created crimes and
penalties which were not of general application, said, at 289- 290:
"But such a lack of generality
in criminal legislation need not, of itself,
involve the judicial function, and their Lordships are not prepared to hold
that every
enactment in this field which can be described as ad hominem and ex
post facto must inevitably usurp or infringe the judicial power.
Nor do they
find it necessary to attempt the almost impossible task of tracing where the
line is to be drawn between what will and
what will not constitute such an
interference. Each case must be decided in the light of its own facts and
circumstances, including
the true purpose of the legislation, the situation to
which it was directed, the existence (where several enactments are impugned)
of a common design, and the extent to which the legislation affects, by way of
direction or restriction, the discretion or judgment
of the judiciary in
specific proceedings.... legislation ad hominem which is thus directed to the
course of particular proceedings
may not always amount to an interference with
the functions of the judiciary. But in the present case the Lordships have no
doubt
that there was such an interference ... Quite bluntly, their aim was to
ensure that the judges in dealing with these particular persons
and these
particular charges were deprived of their normal discretion as respects
appropriate sentences. They were compelled to sentence
each offender on
conviction to not less than ten years' imprisonment, and compelled to order
confiscation of his possessions, even
though his part in the conspiracy might
have been trivial ...
If such Acts as these were valid the judicial power could be wholly
absorbed by the legislature and taken out the hands of the judges."
It is to be observed in the instant case that s78A(1) applies
equally to
all persons found guilty of the class of offences to which s78A relates.
A similar conclusion was reached by the Court
of Appeal of the Solomon
Islands in Gerea and others v Director of Public Prosecutions [1986] LRC
(Crim) 3. Connolly JA with whom White P concurred, said, at 10-11:
"The more serious question is whether a court can be said to be other
than
independent because a provision of the law imposes a mandatory sentence.
Obviously the provision of the mandatory sentence excludes
all discretion in
the court. This, it may be noted, was the position for hundreds of years under
the law of England in the days of
capital punishment, when for murder the only
sentence which might be pronounced was a sentence of death. For our part we
find it
difficult to believe that the courts were any less independent on this
account. Statutes in many countries make provision not only
for mandatory
sentences but for maximum and for minimum sentences. It may be said that the
latter two categories leave the court
some discretion but it cannot be denied
that they restrict it. The fact, however, is that it is of the nature of the
legislative
process constantly to vary the content of the law to be applied by
the courts. This means that with every exercise of the legislative
power there
comes into existence a new legal framework to which the court must give
effect. Thus a court which is free to act on
the principles of common law and
equity may find that a new defence or a new cause of action is introduced by a
statute. It cannot,
in our judgment, seriously be described as trenching upon
the independence of the court to say that it is required to give effect
to the
alteration in the law. The courts exist to enforce the law in the form which
it takes from time to time. They are, in our
judgment, independent within the
meaning of s10(1) if in the exercise of that function they are subject neither
to control nor pressure
by any outside body. The requirement of s10(1) is, in
our opinion, fully met if, as in the case in Solomon Islands, they are subject
to no direction by the legislature or the executive government as to the
disposition of a particular case and of no form of pressure
from outside
bodies in the performance of their judicial functions. They are, however, like
the courts in all civilised countries
subject to the same body of law as is
every other citizen. The courts are not intended by s10(1) to be independent
of the law but
independent within it."
In Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 70 ALJR 814, the
High Court of Australia was divided as to whether or not an Act which required
the Supreme Court of New South Wales to impose
preventative detention on a
single individual was an invalid interference with the judicial power. Dawson
J held, at 831, that "it
is not apparent that an order that the appellant be
detained represents the exercise of executive or legislative power rather than
of judicial power". Toohey J said, at 837, that:
"The Act does prescribe criteria of which the Court must be satisfied
before
making an order. Limited though it is, the role of the Supreme Court is
not reduced to saying no more than that the person charged
has been identified
as fitting a description laid down in the Act. The Act is not invalid on that
ground, divorced from any consideration
of Chapter III.
However the Act is invalid by reason of the incompatibility with Chapter
III of the Commonwealth Constitution
that its implementation produces. If the
Act operated on a category of persons and a defence to an application for a
preventive detention
order was confined to a challenge that the criteria in
s5(1) had not been met, different questions might arise. In that situation
the
judicial power of the Commonwealth may not be involved; that is something on
which is unnecessary to comment. But here the judicial
power of the
Commonwealth is involved, in circumstances where the Act is expressed to
operate in relation on one person only, the
appellant, and has led to his
detention without a determination of his guilt for any offence. In that event
validity is at issue,
not simply the reach of the Act in a particular case."
Gaudron J said at page 842:
"The integrity of the courts depends on
their acting in accordance with the
judicial process and, in no small measure, on the maintenance of public
confidence of that process.
Particularly is that so in relation to criminal
proceedings which involve the most important of all judicial functions,
namely, the
determination of the guilt or innocence of persons accused of
criminal offences. Public confidence cannot be maintained in the courts
and
their criminal processes if, as postulated by s5(1), the courts are required
to deprive persons of their liberty, not on the
basis that they have breached
any law, but on the basis that an opinion is formed, by reference to material
which may or may not
be admissible in legal proceedings, that on the balance
of probabilities they may do so."
McHugh J said at page 850:
"It
is not merely that the Act involves the Supreme Court in the exercise
of non-judicial functions or that it provides for punishment
by way of
imprisonment for what the appellant is likely to do as opposed to what he has
done. The Act seeks to ensure, so far as
legislation can do it, that the
appellant will be imprisoned by the Supreme Court when his sentence for
manslaughter expires. It
makes the Supreme Court the instrument of a
legislative plan, initiated by the executive government, to imprison the
appellant by
a process that is far removed from the judicial process that is
ordinarily invoked when a court is asked to imprison a person.
... It is not going too far to say that proceedings under the Act bear very
little resemblance to the ordinary processes and proceedings
of the Supreme
Court. They do not involve any contest as to whether the appellant has
breached any law or any legal obligation. They
"are not directed to any
determination or order which resolves an actual or potential controversy as to
existing rights or obligations"
which is the benchmark of an exercise of
judicial power."
Gummow J said at page 857:
"The Act is an extraordinary piece of
legislation. The making thereunder of
"detention orders" by the Supreme Court in the exercise of what the statute
purports to classify
as an augmentation of its ordinary jurisdiction, to the
public mind, and in particular to those to be tried before the Supreme Court
for offences against one or other or both of the State and federal criminal
law, is calculated to have a deleterious effect. This
is that the political
and policy decisions to which the Act seeks to give effect, involving the
incarceration of a citizen by court
order but not as punishment for a finding
of criminal conduct, have been ratified by the reputation and authority of the
Australian
judiciary. The judiciary is apt to be seen as but an arm of the
executive which implements the will of the legislature. Thereby a
perception
is created which trenches upon the appearance of institutional impartiality to
which I have referred."
There is nothing
in any of these statements which suggests that merely
because a court, having found the appellant guilty of an offence, is mandated
to record a conviction and impose a minimum sentence of imprisonment, that is
an interference with the independence of the judiciary.
The amending Act is
not ad hominem but applies equally to all adults found guilty of certain
defined property offences. Nor does
the amending Act direct the Court to reach
a finding of guilt. Guilt is proved in the usual way - by admissible evidence
led by the
prosecution. Only when guilt is thus established is a court
required to convict. As to that, whilst the legislation has restricted
the
operation of a statutory power which did not exist at common law, which
enables courts in the Territory to dismiss a charge in
appropriate cases,
notwithstanding that the accused is guilty, this is not an interference with
the independence of the judiciary.
There is no transference of judicial power
to any executive body such as had occurred in Deaton v The Attorney-General
and the Revenue
Commissioners , (supra) in Liyanage v The Queen (supra), or R
v Ali (supra). Nor are courts merely the instruments or arms of the
executive
to implement a legislative plan to imprison people who have committed no
crimes. In my opinion, leaving aside a slender
line of Canadian authority
which is premised upon entrenched constitutional provisions in that country
and which have no relevance
to the situation in this country, the authorities
to which I have referred support only one conclusion, viz., that the amending
Act
does not interfere with the independence of the judiciary.
Nor could it be said that the imposition of a mandatory minimum term
of
imprisonment is unconstitutional because it requires the court to impose
"cruel or unusual punishment". Assuming that there is
a restriction on the
ability of the Legislative Assembly to pass laws which require courts to
impose punishments which are cruel
or unusual, there is nothing cruel or
unusual in the requirement, imposed by the legislature, to record a conviction
upon a finding
of guilt and impose a mandatory minimum sentence of the present
nature: see Constitutional Reference by the Morobe Provincial Government
[1985] LRC (Const) 649, per Kidu, CJ at 659-660, and per Kapi, D.C.J. at 660;
Harmelin v Michigan (1991) 501 US 959; Boyd (1995) 81 A Crim R 260 at 266-269.
Accordingly I would dismiss ground two of the appeal.
Grounds three and four of the appeal depended upon the
appellant succeeding
upon either of grounds one or two. As she has failed to do so, I would dismiss
both grounds three and four of
the appeal, and order that the appeal be
dismissed.
BAILEY J
I agree that the appeal should be dismissed for the reasons
given by
Mildren J and have nothing to add.