2 Noncompliance with Obligations under the Refugees Convention
There is a further danger that, when combined with the existing provisions on criminal responsibility, (230) the statute may attribute accessorial liability to refugees, (231) contravening the prohibition on imposing penalties on them by reason of their illegal entry or presence. (232) Accessorial liability arises where a person, knowing the essential circumstances of an offence, (233) intentionally assists or encourages (234) its commission. (235) Asylum seekers clearly encourage or assist the commission of the offence, not least by their presence on the boat throughout the voyage (236) and by paying for the offence to occur. (237) The mental element, which must be proven even for offences of strict liability, (238) requires, first, knowledge of the essential facts and circumstances of the offence, (239) and second, that the act was done for the purpose of assisting the commission of the crime and not for some other reason. (240) It is clear that those onboard the boat would have such knowledge--significantly, there is no requirement that they be aware of the illegality of the act (241)--and no other reason for their payments and presence could be reasonably inferred. (242)
No refugee has yet been charged for accessorial liability. However, it has been noted on at least one occasion that refugees as witnesses may unwittingly making incriminating admissions in response to questioning. (243) The CDPP has acknowledged that there was nothing to prevent such prosecutions, but said they were not pursued as a matter of policy. (244) That policy is not in writing, and, in the words of the prosecutor, 'may well change and evolve depending on the situation and the development of the law [and] political situations.' (245) Some witnesses have not yet been granted refugee status and so might not fall within that policy in any event. (246) The order in that case, requiring that witnesses in such a situation be given independent legal advice before testifying, (247) and the subsequent provision by the CDPP of formal indemnities (248) suggests that the court and the CDPP consider that their prosecution is legally possible. Compliance with Australia's international obligations is not a matter that should be left to prosecutorial discretion. (249) The mandatory sentencing legislation contravenes international law and is dangerously uncertain in its operation.
B Constitutional Validity
There are also concerns about the compatibility of the statutory minimum sentence with the separation of powers. (250) The separation of judicial from legislative and executive power acts not only to preserve the independence of the courts, but is also 'necessary for the protection of the individual liberty of the citizen'. (251) As stated at the Senate inquiry into the legislation, 'there is a clear argument that mandatory minimum sentences ... breach that principle by undermining the independence of the courts'. (252) The policy arguments for the imposition of mandatory minimum penalties have regularly invoked a sense of parliamentary emergency in responding to either perceived threats to border security or, more recently, to the safety of passengers aboard the vessels. However, these concerns are no justification. When mandatory penalties were enacted as part of legislation in response to a failed coup d'etat in Ceylon, the Privy Council warned that urgency could not justify incursions on the constitutional integrity of the judiciary:
It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. (253) The desired policy in this instance can only be said to be one such lesser crisis.
1 The State of the Law
The doctrine of the separation of powers is breached if the legislature usurps or interferes with the judicial power of the courts, (254) or attempts to vest the courts with non-judicial power. (255) In general, the more closely a power is tied to the authoritative determination of legal rights and liabilities, the more likely it is to be a judicial power. (256) This categorisation is imprecise, (257) and some powers are said to be judicial primarily because they have always been regarded as such. (258) Some powers are exclusively judicial, some exclusively non-judicial, and others are neither, such that they may be exercised by either the legislature or the judiciary. (259) The sentencing of offenders belongs unambiguously to the first category: the High Court has affirmed that '[t]he sentencing of offenders, including in modern times the fixing of a minimum term of imprisonment, is as clear an example of the exercise of judicial power as is possible.' (260) Similarly, the question of whether a particular intrusion upon the exercise of judicial power is a breach of the doctrine involves an analysis of 'historic functions and processes of courts of law'. (261)
The Court in Bahar v The Queen ('Bahar') observed that '[n]o-one has (yet) suggested that a minimum statutory penalty itself substantially impairs or is incompatible with the institutional integrity of the courts'. (262) Although judicial consideration of the constitutionality of mandatory sentencing is sparse, in the few instances it has been raised, no serious doubts have been cast on its validity. In Palling v Corfield ('Palling'), often cited as a complete answer to any doubts on the matter, (263) Barwick CJ held that '[i]t 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.' (264) The High Court refused special leave to appeal the constitutionality of the Northern Territory's mandatory minimum sentence regime in 1998. (265) Although decisions on special leave are of little precedential value, (266) two more former Chief Justices of the High Court have extra-curially acknowledged that 'there are perhaps no constitutional grounds, or no substantial constitutional grounds, for challenging the validity ... of mandatory sentencing regimes.' (267) In relation to the instant scheme, the first constitutional challenge in the Western Australian Court of Appeal was not considered, as the appeal against conviction was upheld on other grounds. (268) In another, the Queensland Court of Appeal held that '[i]t is not easy to see how s 233C in any way undermines the institutional integrity of the State courts', (269) although it did not explore the issue in detail. (270) Any argument against the constitutionality of the regime must proceed against the weight of this authority.
2 The Room for Argument
It is well established that the Parliament may, within the confines prescribed by the Constitution, withhold or grant jurisdiction to the courts. (271) In Palling, the High Court upheld a provision under which the Court was required to impose a certain penalty upon the request of the prosecutor. (272) However, this has been taken only to mean that a law does not infringe the separation of powers merely because 'the satisfaction of a condition enlivening the court's statutory duty depends upon a decision made by a member of the Executive branch of government'. (273) That is, the Parliament may grant or withhold jurisdiction, and the granting of that jurisdiction may be conditional upon a decision of the member of the executive. (274)
However, it arguably does not follow from that precedent that the Parliament may grant jurisdiction and then purport to interfere with its exercise of that jurisdiction. No law may confer jurisdiction and proceed to direct how it is to be exercised. (275) In Liyanage v The Queen ('Liyanage'), a decision that predates Palling, the Privy Council found invalid a law whose 'aim was to ensure that the judges in dealing with these ... particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences'. (276) That precedent was binding on the High Court at the time Palling was decided and was not considered or distinguished. (277) It must be acknowledged that additional difficulties attended the legislation impugned in Liyanage: it was also retrospective and 'clearly aimed at particular known individuals'. (278) Accordingly, that case has since been read down to apply 'only to legislation that can properly be seen to be directed ad hominem'. (279) However, such subsequent later developments in the law cannot alter the clear principle advanced by the case at the time that the circumstances in Palling fell for consideration--that such interference with the sentencing discretion was incompatible with an entrenched separation of powers. (280) These contextual observations support limiting the authority of Palling in order to leave open the possibility that it may impermissibly offend the separation of powers for a law to compel a judge 'to sentence each offender on conviction to [a prescribed number of] years' imprisonment ... even though his part in the [crime] might have been trivial.' (281)
It is in any event a well-established principle that no law may confer jurisdiction and proceed to direct how it is to be exercised (282) by requiring the courts to 'depart to a significant degree from the methods and standards which have characterised judicial activities in the past', (283) or to act in a 'manner which is inconsistent with the essential character of a court or with the nature of judicial power.' (284) The mandatory minimum of five years for people smuggling has had both of these effects: it requires a significant departure from well-established principles of sentencing, requiring the courts to act in a way in which, as several...
