Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R [2013] NSWCCA 23 Hearing dates: 26 November 2012 Decision date: 15 February 2013 Before: Bathurst CJ at [1] Allsop P at [2] McClellan CJ at CL at [128] Hall J at [135] Bellew J at [136] Decision: 1.Grant leave to the Australian Human Rights Commission to intervene as amicus curiae. 2.The application for leave to appeal against sentence of Sakarias Alomalu be dismissed. 3.The applications for leave to appeal of Mr Mursid Karim, Mr Bimbi Yusuf Bin Lahaiya, Mr Bayu (aka Ilham Dahlan) and Mr Bonang Darius Magaming be granted. 4.The appeals of Mr Mursid Karim, Mr Bimbi Yusuf Bin Lahaiya, Mr Bayu (aka Ilham Dahlan) and Mr Bonang Darius Magaming be dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONSTITUTIONAL LAW - criminal law - mandatory minimum sentences - two overlapping provisions for sentences - whether valid Legislation Cited: Acts Interpretation Act 1901 (Cth) Anti-People Smuggling and Other Measures Act 2010 (Cth) Black Marketing Act 1942 (Cth) Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) Convention for the Protection of Human Rights and Fundamental Freedoms Crimes Act 1914 (Cth) Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth) Director of Public Prosecutions Act 1983 (Cth) Immigration Restriction Act 1901 (Cth) International Covenant on Civil and Political Rights Migration Act 1958 - 1973 (Cth) Migration Act 1958 (Cth) Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) Migration Legislation Amendment Act (No. 1) 1999 (Cth) Migration Legislation Amendment Act (No. 1) 2001 (Cth) Migration Legislation Amendment Act (No. 5) 2001 (Cth) Migration Legislation Amendment Act (No. 6) 2001 (Cth) Migration Legislation Amendment Act 1989 (Cth) National Security Regulations National Security Act 1939 (Cth) National Service Act 1951 (Cth) Universal Declaration of Human Rights Cases Cited: Australian National Airways Pty Ltd v Commonwealth [1945] HCA 41; 71 CLR 29 Bahar v R [2011] WASCA 249; 255 FLR 80 Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 Cameron v The Queen [2002] HCA 6; 209 CLR 339 Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; 176 CLR 1 Cobiac v Liddy [1969] HCA 26; 119 CLR 257 Ex parte Coorey (1944) 45 SR (NSW) 287 Ex parte Gerard & Co Pty Ltd; Re Craig (1944) 44 SR (NSW) 370 Fraser Henleins Pty Ltd v Cody [1945] HCA 49 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 Green v The Queen [2011] HCA 49; 244 CLR 462 Gypsy Jokers Motorcycle Club Inc v Commission of Police [2008] HCA 4; 234 CLR 532 Hoare v The Queen [1989] HCA 33; 167 CLR 348 at 354 International Finance Trust Co Ltd v New South Wales Crimes Commission [2009] HCA 49; 240 CLR 319 Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719 Kartinyeri v Commonwealth [1998] HCA 52; 195 CLR 337 Kioa v West [1985] HCA 81; 159 CLR 550 Leeth v Commonwealth [1992] HCA 29; 174 CLR 455 Levy v Victoria [1997] HCA 31; 189 CLR 579 Lloyd v Snooks [1999] TASSC 117; 9 Tas R 41 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Nicholas v The Queen [1998] HCA 9; 193 CLR 173 Ong Ah Chuan v Public Prosecutor [1981] AC 648 Palling v Corfield [1970] HCA 53; 123 CLR 52 Pantagis v The Queen [2012] VSCA 160 Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; 243 CLR 319 Polyukhovich v Commonwealth [1991] HCA 32; 172 CLR 501 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Carroll [2010] NSWCCA 55; 77 NSWLR 45 R v El Helau (2010) 267 ALR 734 R v Feng Lin [2001] NSWCCA 7; 119 A Crim R 194 R v GJ [2005] NTCCA 20; 196 FLR 233 R v Green [2010] NSWCCA 313; 208 A Crim R 148 R v Ironside [2009] SASC 151: 104 SASR 54 R v Karabi [2012] QCA 47 R v Latif [2012] QCA 278 R v Nitu [2012] QCA 224 R v Pot, Wetangky and Lande (unrep. NT Supreme Court, Riley CJ, 18 January 2011) Ravenor Overseas Inc v Readhead [1998] HCA 17; (1998) 72 ALJR 671 Singh v Commonwealth [2004] HCA 43; 222 CLR 322 South Australia v Totani [2010] HCA 39; 242 CLR 1 Staden v DPP (2011) 254 FLR 467 Tabet v Gett [2010] HCA 12; 265 ALR 227 Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595 Victoria v Commonwealth [1971] HCA 16; 122 CLR 353 Vinter & Ors v United Kingdom [2012] ECHR 61 Wong v The Queen [2001] HCA 64; 207 CLR 584 Wynbyrne v Marshall [1997] NTSC 120; 117 NTR 11 Texts Cited: Sir Gerard Brennan, "Mandatory Sentencing: Rights and Wrongs" (2001) 7(2) Australian Journal of Human Rights 3 D P Cumaraswamy, "Mandatory Sentencing: the Individual and Social Costs" (2001) 7(2) Australian Journal of Human Rights 7 Category: Principal judgment Parties: Mursid Karim (Appellant) Bimbi Yusuf Bin Lahaiya (Appellant) Bayu Bayu (aka Ilham Dahlan) (Appellant) Sakarias Alomalu (Applicant) The Queen (Respondent) Representation: Counsel: N J Williams SC and J B King (Karim and Lahaiya) J Stratton SC and J Manuell SC (Bayu) K Averre (Magaming and Alomalu) P Neil SC, M G McHugh SC and P M McEniery (Respondent) M Perry QC and H Younan (Amicus Curiae) Solicitors: Legal Aid Commission of NSW (Karim and Lahaiya) Purcell Felton Lawyers (Magaming and Alomalu) Heenan & Company Solicitors, Barristers & Conveyancers (Bayu) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2010/402476, 2011/114048, 2011/137027, 2010/340863, 2011/137586 Decision under appeal Date of Decision: 2011-07-27 00:00:00 Before: Conlon SC DCJ File Number(s): 2010/402476 Judgment 1BATHURST CJ: I agree with the orders proposed by Allsop P and with his reasons for dismissing the appeal. I also agree with the additional remarks made by him in pars [112]-[126] of his Honour's judgment. 2ALLSOP P: Four applicants, Mursid Karim, Bimbi Yusuf Bin Lahaiya, Bayu Bayu (aka Ilham Dahlan) and Bonang Darius Magaming, seek leave to appeal against sentences imposed upon them for offences committed with the bringing to Australia by seagoing vessel of persons who were not authorised to enter Australia. A fifth, Sakarias Alomalu, also sought leave to appeal against his sentence, but, alone among the applicants, Mr Alomalu had an appeal against conviction. That appeal was heard in early October 2012 by a differently constituted Court of Criminal Appeal (constituted by the Chief Judge at Common Law together with Rothman J and Adamson J). The Court reserved its decision. During the hearing before this Court of the applications concerning sentence, the Court that heard Mr Alomalu's conviction appeal was in a position to make orders. The orders made allowed the appeal, quashed the conviction and entered a verdict of acquittal. Mr Alomalu did not, therefore, take any part thereafter in the sentence appeal. His application for leave to appeal against sentence should be dismissed as otiose. 3Involved in the sentence appeals is a challenge to the Constitutional validity of provisions of the Migration Act 1958 (Cth) that were central to the sentences imposed on each man. The provisions in question concerned mandatory minimum sentences for the offences in question. The issues raised were substantial and of public importance. Leave to appeal should be granted in each case, with the exception of Mr Alomalu's application because his conviction appeal has been upheld. The statutory context 4Before turning to the position of each applicant and the central Constitutional argument, the relevant statutory provisions should be explained. Those provisions are in two numbered forms. Taking effect on 1 June 2010, the Anti-People Smuggling and Other Measures Act 2010 (Cth) (the "2010 Act") repealed and re-enacted in reworked and renumbered form ss 232A to 233C of Pt 2, Div 12, Sub-div A of the Migration Act. The provisions before 1 June 2010 5Subdivision A contains provisions which were not repealed by the 2010 Act. Sections 229 to 232 provide for the offences of carriage of non-citizens to Australia without documentation and the carriage of concealed persons to Australia (stowaways), the provision by the master of a vessel of certain information to an authorised officer and the penalty upon a master, owner, agent or charterer of a vessel where a non-citizen enters Australia without a visa as an unlawful non-citizen. 6Section 234 concerns false papers; s 235 concerns offences in relation to work; s 236 concerns offences relating to visas. 7Section 232A (the first of the provisions repealed by the 2010 Act) was in the following terms: 232A Organising bringing groups of noncitizens into Australia (1) A person who: (a) organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and (b) does so reckless as to whether the people had, or have, a lawful right to come to Australia; is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both. (2) For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3). 8Section 233 was in the following terms: 233 Persons concerned in bringing noncitizens into Australia in contravention of this Act or harbouring illegal entrants (1) A person shall not take any part in: (a) the bringing or coming to Australia of a noncitizen under circumstances from which it might reasonably have been inferred that the noncitizen intended to enter Australia in contravention of this Act; (b) the concealing of a noncitizen with intent to enter Australia in contravention of this Act; or (c) the concealing of an unlawful noncitizen or a deportee with intent to prevent discovery by an officer. (1A) Strict liability applies to the element of an offence against paragraph (1)(a) that the bringing or coming to Australia of the relevant noncitizen was under circumstances from which it might reasonably have been inferred that the noncitizen intended to enter Australia in contravention of this Act. (2) A person is guilty of an offence if: (a) the person harbours another person; and (b) the other person is an unlawful noncitizen, a removee or a deportee. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. 9At this point it is worth noting that: s 232 A(1) referred to a group of five or more persons, whereas s 233(1) referred to "a non-citizen", including, of course, more than one (Acts Interpretation Act 1901 (Cth), s 23(b)); the operative expressions in s 232A(1) were "organise" or "facilitate" and in s 233(1) the expression was "take any part in"; s 232A(1) required that the person be reckless as to whether the "people had, or have, a lawful right to come to Australia", whereas s 233(1) referred to circumstances from which it might reasonably be inferred that the "non-citizen intended to enter Australia in contravention of [the Migration Act]." These considerations tended to indicate a higher degree of seriousness of the offence in s 232A than in s 233. This was reflected starkly in the different punishments provided for: 20 years imprisonment and 10 years imprisonment respectively. 10Section 233A created offences for specific acts in connection with the entry into Australia or application for visas concerning five or more people, and was in the following terms: 233A Other offences relating to groups of noncitizens etc. (1) A person must not, in connection with: (a) the entry or proposed entry into Australia, or the immigration clearance, of a group of 5 or more noncitizens (which may include that person), or of any member of such a group; or (b) an application for a visa or a further visa permitting a group of 5 or more noncitizens (which may include that person), or any member of such a group, to remain in Australia; do any of the following: (c) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document that the person knows is forged or false; (d) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that the person knows is false or misleading in a material particular; (e) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished, for official purposes of the Commonwealth, a document containing a statement or information that the person knows is false or misleading in a material particular. (2) A person must not transfer or part with possession of a document or documents: (a) with the intention that the document or documents be used to help a group of 5 or more people, none of whom are entitled to use the document or documents, or any member of such a group, to gain entry into or remain in Australia, or to be immigration cleared; or (b) if the person has reason to suspect that the document or documents may be so used. Penalty: Imprisonment for 20 years or 2,000 penalty units, or both. 11The offences in s 233A(1) required knowledge of the relevant falsity, and the offence in s 233A(2)(a) required intention; the offence in s 233A(2)(b) only required, however, reason to suspect the false use of a document. 12Sections 233B and 233C concerned penalty for both ss 232A and 233A, but not for s 233. Section 233B provided that, except for a person charged with an offence under ss 232A and 233A who was proved to be under 18 years of age, a court was not permitted to make an order under the Crimes Act 1914 (Cth), s 19B permitting discharge of a person without proceeding to a conviction or the dismissal of the charge where the charge is proved. Section 233C, which was at the heart of the debate before this Court, provided for mandatory minimum head sentences and non-parole periods for the offences in ss 232A and 233A (but not in s 233) in the following terms: 233C Mandatory penalties for certain offences (1) This section applies if a person is convicted of an offence under section 232A or 233A, unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed. (2) The court must impose a sentence of imprisonment of at least: (a) 8 years, if the conviction is for a repeat offence; or (b) 5 years, in any other case. (3) The court must also set a nonparole period of at least: (a) 5 years, if the conviction is for a repeat offence; or (b) 3 years, in any other case. (4) In this section: (a) nonparole period has the same meaning as it has in Part IB of the Crimes Act 1914; and (b) a person's conviction for an offence is for a repeat offence if, on a previous occasion after the commencement of this section, a court: (i) has convicted the person of another offence, being an offence against section 232A or 233A; or (ii) has found, without recording a conviction, that the person had committed another such offence. 13I will henceforth refer to the provisions which were repealed by the 2010 Act as the 'old' sections and their replacement sections as the 'new' sections. The provisions after 1 June 2010 14In place of old ss 232A to 233C set out above there were enacted new ss 233A to 233E. New s 233A created the offence of "people smuggling". It is in the following terms: 233A Offence of people smuggling (1) A person (the first person) commits an offence if: (a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and (b) the second person is a noncitizen; and (c) the second person had, or has, no lawful right to come to Australia. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. (2) Absolute liability applies to paragraph (1)(b). (3) For the purposes of this Act, an offence against subsection (1) is to be known as the offence of people smuggling. 15The element of the offence is "organise or facilitate"; the provision is in respect of one (or more than one) person: Acts Interpretation Act, s 23(b); the offence no longer has an element of "circumstances from which it might reasonably have been inferred" as did the old s 233 or "recklessness" as did the old s 232A. 16New s 233B provides for an offence of aggravated people smuggling. It is in the following terms: 233B Aggravated offence of people smuggling (exploitation, or danger of death or serious harm etc.) (1) A person (the first person) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence) in relation to another person (the victim) and any of the following applies: (a) the first person commits the underlying offence intending that the victim will be exploited after entry into Australia (whether by the first person or another); (b) in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment (within the ordinary meaning of that expression); (c) in committing the underlying offence: (i) the first person's conduct gives rise to a danger of death or serious harm to the victim; and (ii) the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct. Penalty: Imprisonment for 20 years or 2,000 penalty units, or both. (2) There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence. (3) To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence. (4) In this section: exploit has the same meaning as in the Criminal Code. forced labour has the same meaning as in section 73.2 of the Criminal Code. serious harm has the same meaning as in the Criminal Code. sexual servitude has the meaning given by section 270.4 of the Criminal Code. slavery has the meaning given by section 270.1 of the Criminal Code. 17The aggravation in respect of the underlying offence arises from the character and surrounding circumstances of the organising or facilitating: see paras (a), (b) and (c). 18New s 233C also provides for an offence of aggravated people smuggling. The aggravation in respect of the underlying offence is the number of people involved. Of course, even if five people are involved, the new s 233A could be used. This overlap was at the heart of the argument as to Constitutional validity. Section 233C is in the following terms: 233C Aggravated offence of people smuggling (at least 5 people) (1) A person (the first person) commits an offence if: (a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and (b) at least 5 of the other persons are noncitizens; and (c) the persons referred to in paragraph (b) who are noncitizens had, or have, no lawful right to come to Australia. Penalty: Imprisonment for 20 years or 2,000 penalty units, or both. (2) Absolute liability applies to paragraph (1)(b). (3) If, on a trial for an offence against subsection (1), the trier of fact: (a) is not satisfied that the defendant is guilty of that offence; and (b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling; the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt. 19Sections 233D and 233E concern supporting the offence of people smuggling and concealing and harbouring non-citizens and other matters. 20It is to be noted that the rewording of the new ss 233A, 233B and 233C did away with the differences in wording of the elements of the offences in the old ss 232A, 233 and 233A. The new provisions built on the common formulation of the primary offence of people smuggling in s 233A. 21Section 234A concerns an aggravated offence of false documents and false and misleading information relating to at least five non-citizens, the number of non-citizens involved being the only aggravating element to the offence in s 234. Neither provision played any direct part in the appeal. No applicant was charged under either section, but the arguments on appeal would apply to these provisions as well. The penalties for the two offences in ss 234 and 234A are 10 years and 1,000 penalty units, and 20 years imprisonment and 2,000 penalty units, respectively. 22New ss 236A and 236B concern the aggravated offences in ss 233B, 233C and 234A, but not the offence of people smuggling in s 233A or the false documents offence in s 234. Section 236A provides for the operation of the Crimes Act, s 19B as did the old s 233B. New s 236B provides for mandatory minimum sentences in the manner of the old s 233C. New s 236B is in the following terms: 236B Mandatory minimum penalties for certain offences (1) This section applies if a person is convicted of an offence against section 233B, 233C or 234A. (2) This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed. (3) The court must impose a sentence of imprisonment of at least: (a) if the conviction is for an offence against section 233B-8 years; or (b) if the conviction is for a repeat offence-8 years; or (c) in any other case-5 years. (4) The court must also set a nonparole period of at least: (a) if the conviction is for an offence to which paragraph (3)(a) or (b) applies-5 years; or (b) in any other case-3 years. (5) A person's conviction for an offence is for a repeat offence if: (a) in proceedings after the commencement of this section (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court: (i) has convicted the person of another offence, being an offence against section 233B, 233C or 234A of this Act; or (ii) has found, without recording a conviction, that the person has committed another such offence; or (b) in proceedings after the commencement of the Border Protection (Validation and Enforcement Powers) Act 2001 (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court: (i) has convicted the person of another offence, being an offence against section 232A or 233A of this Act as in force before the commencement of this section; or (ii) has found, without recording a conviction, that the person has committed another such offence. (6) In this section: nonparole period has the same meaning as it has in Part IB of the Crimes Act 1914. Some further comments on the history of the statutory provisions 23Commonwealth offences relating to unauthorised entry into Australia have existed since Federation: see for example the Immigration Restriction Act 1901 (Cth), s 9 that provided for a summary offence by a master, owner, agent or charterer of a vessel from which any prohibited immigrant entered the Commonwealth, with a penalty of 100 pounds per prohibited immigrant: cf the Migration Act, s 232, above. From 1910, the Immigration Restriction Act (later renamed the Immigration Act), s 12A created the offence of being directly or indirectly concerned in the bringing into, or concealment of persons in the Commonwealth in circumstances leading to the inference that the immigrant intended to land secretly or without the knowledge of the officer. Section 12A prescribed a penalty of 100 pounds or six months' imprisonment, or both. This became s 30 of the Migration Act 1958 - 1973 (Cth). Over time this penalty increased. By 1973, the penalty was four hundred dollars or imprisonment for six months (Migration Act 1958 - 1973, s 30). On 22 July 1999, with the section numbers having changed from s 12A of the Immigration Restriction Act and the Immigration Act, to ss 30 to 80 to 233 of the Migration Act, the penalty increased to 10 years or 1,000 penalty units, or both (Migration Legislation Amendment Act (No.1) 1999, Schedule 1(6)). This increase was recognised to be because of the seriousness of the offence and the clear need for deterrence. 24On the same day as the penalty for s 233 was increased, the same legislation created the offences in the old ss 232A and 233A, relating to organising the entry into Australia of groups of non-citizens and to false documents and misleading information in connection with the entry of groups of non-citizens, respectively. The maximum penalty for each of these offences was imprisonment for 20 years, 2,000 penalty units or both. 25The clear policy of Parliament was to increase penalties and express a view as to the seriousness of the offending. A sentencing court was obliged, however, in the exercise of judicial power, to impose a sentence that was of a severity appropriate in all the circumstances of the offence: the Crimes Act, s 16A(1), taking into account, in addition to any other matter, the considerations in s 16A(2) and generally in accordance with the Crimes Act, Part 1B. 26In September 2001, a suite of six Commonwealth Acts came into force which affected the entry into and remaining in Australia by aliens: Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) (the "Border Protection Act"), Migration Amendment (Excision from Migration Zone) Act 2001 (Cth), Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth), Migration Legislation Amendment Act (No 1) 2001 (Cth), Migration Legislation Amendment Act (No 5) 2001 (Cth) and Migration Legislation Amendment Act (No 6) 2001 (Cth). The context of the passing into force of these Acts was described by the High Court in Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; 243 CLR 319 at [29] - [30], 339 - 340. 27The Border Protection Act introduced old s 233C into the Migration Act, providing for mandatory minimum penalties for persons convicted of offences under old ss 232A and 233A. The expression of the purpose of s 233C was to "limit ... sentencing options for people smuggling offences": Explanatory Memorandum, and to "send ... a very important red light to would-be people smugglers": second reading speech of the Minister, the Hon Philip Ruddock, Hansard, House of Representatives, 18 September 2001, p 30870. 28On 16 January 2003, the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) introduced cognate offences into Div 73 of the Criminal Code Act 1995 (Cth). These offences were people smuggling, aggravated people smuggling by exploitation, aggravated people smuggling of five people or more and offences concerning travel and identity documents. These were offences were similar in kind and character to those contained in the Migration Act, except that they related to the entry into a foreign country, whether or not via Australia. The penalties reflected the regime in the Migration Act at that time: imprisonment for 10 years or 1,000 penalty units or both for people smuggling and the travel and identity document offences, and imprisonment for 20 years or 2,000 penalty units or both for the aggravated people smuggling offences. The penalties for these offences have never been subject to mandatory minimum sentences. 29In 2010, the amendments that I have earlier outlined were made. The purpose of the amending legislation (the 2010 Act) was said by the Attorney-General (the Hon Robert McClelland) to strengthen the Commonwealth's anti-people smuggling legislative framework. The Attorney-General also referred to the serious criminal conduct of smuggling and subsequently endangering people. In connection with the extension of mandatory minimum sentences to the new aggravated people smuggling offence involving exploitation or danger of death or serious harm, the Attorney-General said: "The use of mandatory minimum penalties reflects the seriousness of the activity being prosecuted. It allows the court to determine an appropriate penalty within the minimum and maximum set by Parliament." (Second reading speech of the Minister, the Hon Robert McClelland, Hansard, House of Representatives, 24 February 2010, p 1645.) 30It is appropriate at this point, by way of preface to the balance of this judgment, to recognise the seriousness of the conduct to which these sections are directed. In R v Feng Lin [2001] NSWCCA 7; 119 A Crim R 194 Mason P at [3] and Carruthers AJ at [49] - [50] (with whose reasons Hidden J agreed) explained the seriousness of the offences and the need for deterrence: Mason P: "3 The objective seriousness of the offence is evident from its nature and the reasons underlying the 1999 amendments which increased the maximum penalty to ten years imprisonment or 1000 penalty units or both. Smuggling non-citizens into Australia presents obvious social problems to the fabric of Australian society; it undermines the attempted equities of an organised immigration and refugee system; it exposes the participants to exploitation and risk to health and life; and it imposes significant costs upon the Australian public. The need for deterrent penalties is manifest given the difficulties of detection and the exposure of Australia through its vast coastline. The extent of the problem has increased markedly in recent years, according to the Minister's second reading speech set out in the judgment of Carruthers AJ. ... Carruthers AJ: 49 When introducing the Bill into the House of Representatives, the Honourable Peter Slipper (Parliamentary Secretary to the Minister for Finance and Administration) said (Hansard 30 June 1999 p 7992): - "The government is committed to protecting the integrity of the nation's borders and to stopping the work of people traffickers who think nothing of exploiting people with the false promise of entry into Australia." 50 The Honourable Con Sciacca, (Shadow Minister for Immigration) who supported the Bill, said during the course of the debate (at p 7993): - "Over the past 18 months Australia has increasingly been seen as a soft target to gangs of people traffickers in a number of countries. Overall in 1997-98 some 157 illegal immigrants arrived by sea on our shores. In 1998-99 this figure increased eightfold to 859, and more are coming every day. This increase in people smuggling in the operation of the so-called 'snakeheads', signifies that Australia's penalties for these offences do not go far enough to deter those who assist these criminal warlords on our shores. The amendments put forward today reflect the seriousness of these crimes and their cost to the government and to the Australian community."" 31In light of some of the later discussion in these reasons about the character and potential effect of mandatory minimum sentences, it is appropriate to say that the smuggling of people illicitly into Australia (whatever may well be the justness of claims of such people for protection by Australia) is potentially productive of great suffering. The people smuggled are at risk of great danger on both land and sea journeys; they, by necessity, associate with organised criminal gangs, sometimes at great financial cost, which, it might be thought, can only often be afforded by many people by ancillary participation in darker forms of human trafficking. The deterrence of the illicit trade in smuggling people can be seen as both a legitimate and important public policy of the Australian Parliament. The charges and sentences of the applicants 32Two applicants, Mr Bayu and Mr Karim, were charged under the old s 232A, their offences having been committed in February and April 2010, respectively. Mr Bayu pleaded guilty. Mr Karim pleaded not guilty, but was found guilty. Both were sentenced under the old s 233C. Mr Bayu was sentenced to six years' imprisonment, with a non-parole period of three and a half years. Mr Karim was sentenced to five years' imprisonment, with a non-parole period of three years. 33The other three applicants, Mr Magaming, Mr Alomalu and Mr Bin Lahaiya were charged under the new s 233C, their offences having been committed in September and October 2010. Mr Magaming pleaded guilty. The other two pleaded not guilty, but were found guilty. All three were sentenced under the new s 236B. All were sentenced to 5 years' imprisonment, with a non-parole period of 3 years. The Constitutional challenge to old s 233C and new s 236B 34The principal submissions on Constitutional invalidity were put on behalf of Mr Karim. They were adopted by Messrs Bayu, Magaming and Bin Lahaiya. The arguments put were referable to both the old and new provisions. Subject to one argument of the Crown referable only to the old provisions, and so the positions of Mr Bayu and Mr Karim, the arguments put on behalf of Mr Karim were applicable to both old s 233C and new s 236B. 35The Australian Human Rights Commission (the "Commission") sought leave to intervene in Mr Karim's application in support of the Constitutional arguments put by him on four issues that were raised by his grounds of appeal and expressed by the Commission in its submissions as follows: "(a) the relevance of the common law to concepts of judicial power and the judicial process contemplated by Chapter III of the Constitution; (b) the influence of international human rights on the development of the common law; (c) the content of international human rights as they relate to mandatory minimum sentencing regimes; and (d) the relevance of international human rights, as they relate to mandatory minimum sentencing regimes, to the concepts of judicial power and judicial process." 36The Crown opposed the grant of leave. It first denied that the Court had "jurisdiction" to grant leave. That submission was withdrawn at the hearing. The Court of Criminal Appeal certainly has authority implied within the Criminal Appeal Act 1912 (NSW) in the furtherance of the expeditious and just resolution of disputes before it, to grant leave to a non-party to put submissions in an appropriate case as amicus. The grant can be so limited as to avoid strict party status. Whether or not the Court has authority to permit full intervention in a criminal matter (and if it does, the circumstances in which it should be granted) need not be decided. There is no call therefore to deal with R v GJ [2005] NTCCA 20; 196 FLR 233. 37The Court received detailed written submissions from Ms Perry QC and Ms Younan, as well as oral submissions in reply to the Crown's written submissions that had addressed the Commission's written submissions. 38As the argument developed, in particular, as Mr Karim's counsel, Mr Williams SC and Mr King, refined and limited their arguments, the submissions of the Commission threw a valuable and fundamental perspective on the debate. Whilst the Constitutional challenge must fail, at this level of an intermediate court of appeal, the submissions of the Commission were valuable and of great assistance, in addition to the helpful and clear submissions put on behalf of Mr Karim. 39Exercising the necessary due caution in permitting third parties to assist as amicus: Levy v Victoria [1997] HCA 31; 189 CLR 579, I would grant leave to the Commission to put submissions as amicus curiae. The Commission's submissions developed aspects of the Constitutional and international framework not developed by Mr Karim. A relevant question of statutory interpretation 40Before turning to the three central submissions of Mr Karim, it is appropriate to deal with a question of statutory interpretation that is common to both old s 233C and new s 236B. Whilst the question was not central to Mr Karim's submissions that were expounded at the appeal, it bears some relationship to them, and, further, it was an important question in the submissions put on behalf of Mr Bayu concerning his sentence. 41In R v Pot, Wetangky and Lande (unrep., NT Supreme Court, Riley CJ, 18 January 2011), the offenders had pleaded guilty to offences under old s 232A. The Chief Justice approached the sentencing task conformably with the approach taken by judges in the Northern Territory Supreme Court to that date: Mildren J in Tahir and Beny (28 October 2009) and Kelly J in Dokeng (2 December 2010). That approach was to apply Pt 1B of the Crimes Act to come to a view about an appropriate sentence in all the circumstances of the offence. If the sentence considered thus was less than the mandatory minimum non-parole period and head sentence, it would be raised to meet the mandatory requirements of s 233C. Riley CJ said in his reasons: "There is no suggestion that by creating the mandatory minimum penalty provided for in s 233C of the Migration Act the legislature intended to undermine those general sentencing principles found in Part 1B of the Crimes Act or the relevant common law principles. There is nothing to suggest that it was intended that the requirements of s 16A(1) of the Crimes Act should be read to require a Court to determine the appropriate severity of a sentence by reference to a predetermined base not necessarily reflecting the circumstances of the offending and which may be removed from what the Court would otherwise consider an appropriate sentence in all the circumstances. The minimum sentence previously applicable was not abrogated by the inclusion of s 233C of the Act. The section simply required a sentence of at least the mandatory minimum to be applied in identified circumstances. The explanatory memorandum expressed the position in these terms: "Mandatory minimum penalties still provide a court with discretion when determining the appropriate sentence providing that the Court does not go below the mandatory minimum sentence and non-parole period. This allows the Court to have regard to the circumstances of both the offence and the offender." The Court continues to be obliged to have regard to the same general sentencing principles as was previously the case, including determining a sentence of severity appropriate in all the circumstances of the offence. In my opinion, the section provides the minimum sentence that can be imposed in the identified circumstances but does not go so far as to reserve that mandatory minimum sentence only for cases at the lowest end of seriousness for relevant offending, as submitted by the Crown. A clear expression of such an intention would be expected and is not present." 42The Western Australian Court of Appeal disagreed with this approach in Bahar v R [2011] WASCA 249; 255 FLR 80. The reasons of the Court were those of McLure P, with which Martin CJ and Mazza J agreed. McLure P recognised that s 233C is to be construed together with Pt 1B, and in particular s 16A, of the Crimes Act. Her Honour said that the principle of proportionality central to s 16A incorporates the objective circumstances of the seriousness of the offence: Hoare v The Queen [1989] HCA 33; 167 CLR 348 at 354; and s 16A(2)(a): see [44] - [45] of McLure P's reasons and the seriousness of the offence "is to be determined by taking into account both the statutory maximum penalty as well as any statutory minimum penalty": [45] of McLure P's reasons. The language of the provisions made it clear that, as her Honour said, Parliament intended to deprive a judicial officer sentencing an offender under s 232A of the power to impose a non-custodial sentence or less than 5 years' imprisonment: [53] of McLure P's reasons. Her Honour concluded at [54] that the general sentencing principles in Pt 1B applied, but between the maximum and the mandatory minimum sentences, as the ceiling and the floor of punishing, saying: "Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the 'just and appropriate' sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a 'just and appropriate' sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied." 43The Queensland Court of Appeal has followed Bahar on three occasions: R v Karabi [2012] QCA 47, R v Nitu [2012] QCA 224 and R v Latif [2012] QCA 278. 44It was argued by Mr Stratton SC and Ms Manuell SC on behalf of Mr Bayu that Bahar was plainly wrong, justifying departure from it by this Court. In my view, no argument was put that undermined or threw into sufficient doubt the reasoning of McLure P on what is, essentially, a question of statutory construction. For an Australian intermediate court of appeal to depart from the decision of another Australian intermediate court of appeal, the nature and quality of the asserted error in the earlier Court's decision must be one which leaves the later court convinced that the earlier decision is wrong (not as a question of patency or obviousness, but as a question of conviction): see generally Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at 561 - 566 [274] - [295]. The most, in my view, that can be said here is that the view of Riley CJ (and Mildren J and Kelly J) is one that is open and, with respect, arguable. Nevertheless, its arguability does not convince me of any error in the approach taken in four intermediate Court of Appeal decisions in two States of the Commonwealth on a matter of statutory interpretation: Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595 at 602 - 603 at [27] - [28], read with Gett v Tabet at 563 [283]. 45There is an independent reason that leads me to favour the construction in Bahar. Equal justice inheres in judicial power, the fabric of the law and the basal notion of justice that underpins, informs and binds the legal system. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; 207 CLR 584 at 608 [65], "[e]qual justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect" (emphasis in original). To approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty. Thus, if a judge thought the relevant offending in one case to be of low seriousness and worthy of a sentence of six months, but in another case to be of significant seriousness worthy of imprisonment for five years, she or he would be obliged to revise the first sentence to five, leaving the second sentence at that point also. The statute, and through it the order of the Court, would be the instrument of unequal justice and, so, injustice: R v Green [2010] NSWCCA 313; 207 A Crim R 148 at 156 [23]; and Green v The Queen [2011] HCA 49; 244 CLR 462 at 466 [4] and 489 [80]. On the other hand, approaching the matter as in Bahar permits all usual sentencing considerations, including parity, to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences. Mr Karim's arguments 46Though specifically limited to old s 233C, the arguments applied equally (and indeed on one view with more force) to new s 236B. The structure of the argument contained three elements, all closely related. First, s 233C purports to confer non-judicial power on State courts, because the power in s 233C cannot be exercised in accordance with fundamental principles of equal justice and cannot be exercised other than arbitrarily or capriciously, or without giving reasons. This can be seen as an attempt to confer non-judicial power, because the legislative power of the Commonwealth Parliament does not extend to requiring courts to exercise the judicial power of the Commonwealth in a manner contrary to the judicial process. 47Secondly, s 233C purports to confer judicial power on the Executive. In written submissions, this second element was expressed in the alternative as a usurpation of the judicial power of the Commonwealth by the legislature. This latter way of putting the point focused, as did the first element above, to a degree, upon the intrinsic characteristic of a mandatory minimum sentence: that of the statutory compulsion for the imposition of a sentence at a particular level. It will be necessary to return to this way of putting the matter (although not pressed by Mr Karim) when dealing with the Commission's submissions. The way this second element was put in argument on appeal by Mr Karim focused on the place and function of the Executive, in the laying and prosecution of the charge, and the overlapping nature and terms of the offences in old s 233 and s 232A. In circumstances where there were more than five people involved, the Executive, through the Director of Public Prosecutions or the Attorney-General if a power of direction was used, was given a choice as to which provision the person should be charged under. This, illegitimately, it was submitted, conferred an aspect of judicial power (the choice of sentence) upon the Executive. 48Thirdly, s 233C is inconsistent with Chapter III of the Constitution in that it impermissibly directs State courts as to the manner and outcome of the exercise of their jurisdiction to sentence federal offenders, thereby impairing the character of those courts as independent and impartial tribunals. The written submissions focused upon s 233C being a legislative direction to the court by reason of the mandatory character of the sentence to be imposed. In oral submissions, this way of putting the matter was not abandoned, but was drawn together with the theme of the argument put on appeal as to the Executive choice involved. 49It is to be recognised at the outset that the constituent ideas embodied in the three elements are closely related. This contributes, it might be thought, to their coherency, although also to their vulnerability to existing authority binding on this Court. The first element - equal justice and the asserted lack of conformity with the judicial process 50Central to the first element is the overlap between old ss 232A and 233, and between new ss 233A and 233C. The submissions assumed a significant overlap between the offences. That was challenged by the Crown in respect of old ss 232A and 233. I have earlier pointed to some of the differences in wording of the elements of the two offences. After the textual reworking in 2010, new ss 233A and 233C were relevantly identical. Either provision could be used to found an indictment for the smuggling of five or more people. Differences in wording between old ss 232A and 233 were seen by this Court in Feng Lin at [8], [45] - [47] to be of significance. That view might be seen to undermine what is the fulcrum of much of Mr Karim's arguments - the overlapping nature of these offence provisions. For the purposes of the analysis of the Constitutional question, I will assume a sufficiently significant overlap in the old provisions to the extent that either provision could be used to found an indictment for the involvement in the entry of five or more people into Australia. 51It is the overlapping of the offence provisions, with mandatory minimum sentences applying to only one of the offences, that was said to violate the principle of equal justice. 52The limitation of the argument to the consequences of the overlapping of the offences meant that much of the engagement in the written submissions concerning whether mandatory minimum sentences of themselves offended the equal justice principle fell away, at least in dealing with Mr Karim's submissions. It will be necessary to return to this question in dealing with the Commission's submissions. 53The principles of equal justice have been expressed in a number of decisions in the High Court, and other courts in this country. It is a foundational norm inhering in the fabric of the law and in the exercise of judicial power: Lowe v The Queen [1984] HCA 46; 154 CLR 606, 610 - 611, 613 and 623 - 624; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301 - 302; R v Green [2010] NSWCCA 315; 207 A Crim R 148 at [3]; and Green v The Queen [2011] HCA 49; 244 CLR 462 at 472 - 473 [28] where French CJ, Crennan and Kiefel JJ said: '"Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order". It has been called "the starting point of all other liberties". It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."' (citations omitted) 54An essential attribute of the exercise of judicial power is that the power is exercised or wielded in accordance with the judicial process, which includes equality before the law, impartiality, procedural fairness, the facts being determined in accordance with rules and procedures which truly permit them to be ascertained: Nicholas v The Queen [1998] HCA 9; 193 CLR 173 at 208 - 209; Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at 359 [56] and other cases cited at footnotes 110 and 111; and see R v Carroll [2010] NSWCCA 55; 77 NSWLR 45 at 53 - 54 [33] (agreed in 47[1], and 61 [71], [72]). 55The Commonwealth Parliament has no authority to require or authorise a court to exercise the judicial power of the Commonwealth in a manner inconsistent with the essential character of a court or inconsistently with the nature of judicial power: Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 27; Polyukhovich v Commonwealth [1991] HCA 32; 172 CLR 501 at 607 and 703 - 704. 56Applying the aforementioned principles to the facts of this case, it was submitted that the invalidity of old s 233C (and the new s 236B) arose from the fact that a person charged under the offence provision that attracts the mandatory minimum sentence provisions will be given a penalty reflecting a fixed view of the severity of the conduct coming from the legislative direction. The inequality, offending the principle of equal justice, lies in the existence of the other offence for essentially the same conduct (should there be five people smuggled). Two provisions of the same polity's legislation have criminalised the same conduct with significantly different penalties. The possible vice in the freedom of executive choice of charge will be dealt with shortly under the second element. For the first element, the vice is the existence of the two provisions providing for significantly different sentencing results, one being directed by Parliament. 57The existence of the two provisions dealing with substantially identical conduct and having significantly different sentence provisions means that it is more difficult to defeat the above argument by simply pointing to Parliament's authority to create binding societal norms of conduct by the creation of criminal offences and setting penalties therefor. No clear norm is promulgated: one provision has a 10 year maximum, the ascertainment of the sentence being determined by reference to Part 1B of the Crimes Act, and the other has a 20 year maximum with mandatory minimum head sentences and non-parole periods prescribed. The same conduct (if five or more people are involved) is viewed divergently by the Parliament. No single norm has been chosen by Parliament. 58There are at least three difficulties in the path of the above argument on the first element. First, it requires the recognition of a limit on the Commonwealth Parliament's legislative power such that it cannot pass legislation providing for different offences constituted by the same or substantially identical conduct with materially different sentence provisions. Such a restriction, said to be sourced in equal justice, goes beyond what can be seen as currently accepted as the limitations flowing from the text and structure of Chapter III, the nature and character of courts and of judicial power. It may be that for the Parliament to create such overlapping offences with different sentencing provisions requires some material upon which Parliament might reasonably form the view that, notwithstanding the substantial similarity of offending, the potential variations in the sentencing of offenders for similar offences is justified: cf the power conferred by the Constitution in s 51 (xxvi) and Kartinyeri v Commonwealth [1998] HCA 52; 195 CLR 337 at 365 - 366 [40] - [42]. Regard may also be had, at this point, to what was said by Gaudron, Gummow and Callinan JJ in Cameron v The Queen [2002] HCA 6; 209 CLR 339 at 344 [15], see [60] below. 59The recognition and development, if it be appropriate, of such a constraint is a matter of fundamental Constitutional significance and is for the High Court and not an intermediate appellate court: cf Tabet v Gett [2010] HCA 12; 265 ALR 227 at 234 [25]; Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719 at [63]. 60Secondly, subject to specific restrictions and implications arising from the federal structure, no implication has yet been drawn from the Constitution that it contains an implied guarantee of equal protection: Leeth v Commonwealth [1992] HCA 29; 174 CLR 455 at 467. Leeth was a case dealing with the variable operation through State law (as surrogate federal law, directly picked up by the impugned provision in question) of different non-parole periods for the same offence. Of relevance to consider here, however, is the rejection by the majority of the approach of Deane and Toohey JJ in their recognition of an implication from the Constitution of the general doctrine of legal equality under the law and before the Courts such as to invalidate a law which provided for differential sentencing results in different States and Territories depending on State law. On the other hand, in this respect, support for the argument can be drawn from what was said by Gaudron, Gummow and Callinan JJ in Cameron v The Queen [2002] HCA 6; 209 CLR 339 at 344 [15] about the need for any discrimination or inequality in sentencing to be the product of a distinction which is appropriate and adapted to the attainment of a proper objective. Support can also be found in what Lord Diplock said (speaking for the Privy Council) in Ong Ah Chuan v Public Prosecutor [1981] AC 648 at 673 - 674 about Art 12(1) of the Singapore Constitution providing for equal protection of the law. His Lordship said that mandatory sentences for certain classes of offences did not infringe Art 12 provided that the factor which the legislature adopted as constituting the dissimilarity or point of departure was not purely arbitrary, but bore a reasonable relation to the social object of the law. 61The implication of the constraint on Parliament's authority would have to transcend notions of equality before the law, and reach to invalidate any attempt by Parliament to leave to the due exercise of prosecutional choice, the seriousness of the relevant charge to bring, if there be a choice involved. 62Thirdly, the argument required the putting to one side of the decision of the High Court in Fraser Henleins Pty Ltd v Cody [1945] HCA 49; 70 CLR 100. It was accepted by Mr Williams SC that Fraser Henleins is determinative against the second element of the argument. He submitted, however, that because the cases on equal justice inherent in the exercise of Chapter III power post-date 1945, its implicit effect can be ignored in relation to the first element. It is necessary, therefore, to examine at this point in the argument (dealing with the first element) what was decided in Fraser Henleins. 63Before doing so, a fundamental issue of precedent should be recalled. It was expressed pungently by Brennan CJ (sitting alone) in a summons matter in Ravenor Overseas Inc v Readhead [1998] HCA 17; (1998) 72 ALJR 671 at 672 as follows: "Nothing is more important to the due administration of justice than that the Courts of Australia should faithfully follow decisions of this Court. This Court has the responsibility of determining the law applicable throughout the Commonwealth. Nor should it be thought that, because some new argument can be devised contrary to a holding of this Court, the authority of its decisions become problematic. Although the decisions of this Court will, when this Court deems it necessary, be revisited, there should be no qualification about the duty of other Courts faithfully to apply the decisions of this Court as they stand. Although in recent times rapidly changing social conditions and new insights into the Constitution have led to some notable instances where this Court has revisited earlier decisions, it would be erroneous to assume that the corpus of jurisprudence laid down by this Court over nearly a century does not have complete authority. The decisions of this Court determine the law to be applied by courts throughout the Commonwealth." 64Fraser Henleins, and the decision of the Full Court of the Supreme Court of New South Wales in Ex parte Coorey (1944) 45 SR (NSW) 287 that was relevantly approved in Fraser Henleins, concerned the validity of provisions of the Black Marketing Act 1942 (Cth). Under the National Security Act 1939 (Cth), it was an offence to breach the National Security Regulations made thereunder. Under the National Security Act, the offence involved in such breach, if prosecuted summarily, carried penalties of a fine not exceeding 100 pounds or imprisonment for six months or both. If prosecuted upon indictment, the penalties were a fine of any amount or imprisonment for any term, or both. The Black Marketing Act, s 3 defined "black marketing" by reference to certain acts or omissions which were breaches of the National Security Regulations. Section 4 of the Black Marketing Act provided for sentence upon conviction of the black marketing offences (which were also, of course, offences under the National Security Act). The penalties under the Black Marketing Act provided for mandatory minimum sentences: three months' imprisonment upon summary prosecution and 12 months' imprisonment upon indictment; and fines at 1,000 pounds and 10,000 pounds for a company depending upon whether the prosecution was summary or upon indictment. 65Thus, there were two offences, each defined identically by reference to breaches of the regulations, but with different sentencing regimes, one containing a mandatory minimum sentence. This legislative structure was the same as that here, subject to the argument of the Crown based on the different wording of the old ss 232A and 233. 66Section 4 of the Black Marketing Act also provided that the black marketing offence was not to be prosecuted without the written consent of the Attorney-General after a report from the Minister administering the National Security Regulations and advice from a committee appointed by the Attorney-General and the Minister. 67I will first deal with the Ex parte Coorey. Various points were ventilated, not all of which are presently relevant. The point of present relevance that was run by counsel for Mr Coorey (the convicted black marketeer) had been alluded to by Jordan CJ in an earlier and similar case (Ex parte Gerard & Co Pty Ltd; Re Craig (1944) 44 SR (NSW) 370). In that case, the Chief Justice said the following at 374: "A serious question may, however, arise whether the particular form in which it has been sought to make the provision does not constitute a violation of the provisions of s 71 of the Commonwealth Constitution with respect to the exercise of the judicial power of the Commonwealth. That section provides that the judicial power of the Commonwealth shall be vested in the High Court, in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with Federal jurisdiction. But it can be exercised only by Courts, that is, Courts of Law in the strict sense: The Waterside Workers' Federation of Australia v J.W. Alexander Limited (1918) 25 CLR 434 at 467; 9 Austn Digest 824: and it has been said that "the exercise of the power to impose penalties is admittedly an exercise of the judicial power": ibid at 445. The tribunal provided for by s 4 of the Black Marketing Act 1942, is certainly not a Court, and it is at least open to question whether a provision which, in effect, enables such a tribunal, after secret inquiry, to dictate to a Court of Justice whether or not it is to inflict a minimum penalty in case of conviction, is not an attempt to invest a tribunal which is not a Court with part of the judicial power of the Commonwealth. The question is an important one, but since the point has not been taken on behalf of the applicant in the case now before us, I abstain from passing judgment upon it." (The "tribunal" to which the Chief Justice referred was the advisory committee that advised the Minister.) 68The point was taken in Ex parte Coorey. The argument of Mr Hardwick KC and Mr Hungerford at 293 - 294 reveals that the complaint was that the Black Marketing Act sought to vest judicial power in the Executive (element two of Mr Karim's argument). There was a related complaint as to the non-judicial character of the tribunal. By majority, the Court upheld this second argument. Jordan CJ was alone, however, in upholding the argument that the provision sought to vest judicial power in the Executive. After a discussion of the centrality of the separation of judicial power from executive and legislative power, the Chief Justice at 298 - 299 accepted that it was within the Commonwealth's legislative competence to create new offences and to prescribe penalties for them, which may be fixed, or maximum or minimum or both, and that it was competent for Parliament to authorise the Attorney-General to decide whether a person should be prosecuted and to make such permission a precondition to such a prosecution and to provide for the Attorney-General to seek advice about that decision. These acts of advice and decision were recognised by the Chief Justice to be a legitimate part of the function of the Executive. The vice perceived by the Chief Justice was that the Black Marketing Act did not create new (in the sense of differently worded) offences, but stigmatised existing offences with a label and different (and more severe) penalties. The result was as stated by the Chief Justice at 300 - 301: "What is purported to be done by the Black Marketing Act is to enable the Attorney-General, in particular cases chosen by him, to constrain a Court of Justice, in the event of conviction upon a summary prosecution, to impose a minimum penalty of three months' imprisonment and authorise it to impose a maximum penalty of twelve months' imprisonment, and upon a prosecution upon indictment to constrain it to impose a minimum penalty of twelve months' imprisonment, whilst, if the Attorney-General chooses not to exercise the authority thus purported to be conferred, the case if prosecuted is governed by the general law under which the accused, if convicted summarily, cannot be imprisoned for longer than six months, and the Court has a discretion as to what term of imprisonment is proper, whilst if prosecuted on indictment the term of imprisonment is at the discretion of the court. The Act does not delegate to the Attorney-General the power to alter, by a legislative act operating generally, the penalties attached to certain offences. It leaves the existing penalties generally operative, but it purports to authorise him, in particular cases chosen by him, to dictate to a Court of Justice that at least a certain penalty shall be imposed in the event of conviction, no such minimum being generally operative. It was pointed out in Waterside Workers' Federation of Australia v J.W. Alexander Limited (1918) 25 CLR 434 at 444 that "convictions for offences and the imposition of penalties are matters appertaining exclusively to" the judicial power: c.f. Kemp v Neville (1861) 10 C.B. (N.S.) 523 at 547. In my opinion, as regards all acts which are offences independently of the Black Marketing Act, that Act purports to invest a person who is not a competent Court with part of the judicial power of the Commonwealth, in that it purports to enable him at his discretion to dictate the penalty in particular cases. If a Commonwealth statute provided that, if the Attorney-General when prosecuting a person for particular classes of offence inserted a specified word in the information or indictment, the Court in the event of a conviction should hold its hand, report the fact to him, and then impose such sentence as he might direct, the provision would be obviously bad. In my opinion, the fact that the penalty is dictated in advance of the trial does not make the encroachment on the judicial power of the Commonwealth any the less real. It is necessary to add that there may be cases in which the Black Marketing Act does more than attach an epithet to an existing offence, and itself creates a new offence. For example, in the National Security (Prices) Regulations, the only prohibition against paying for declared goods more than the maximum price is contained in reg. 32, which prohibits the payment of more than the price fixed under the Regulations. It was held by this Court in Ex parte Zietsch; Re Craig (1944) 44 S.R. 360; 61 W.N. 211; Austn Digest (1944) 137 that this did not make it an offence to pay more than a maximum price fixed by a regulation. By s 3(a) of the Black Marketing Act 1942, "black marketing" is defined to mean (inter alia), paying for any goods at a greater price than the maximum fixed by the regulations. Hence the Act here creates a new offence, and in relation to this offence the Attorney-General, when deciding whether or not a person is to be prosecuted for black marketing, is not deciding whether he is to be subjected to penalty A or penalty B, but is deciding whether he is to be prosecuted at all, penalty B being the only available penalty if he is." 69The vice perceived by Jordan CJ reflected the second element of the argument of Mr Karim. If it reflected the accepted legal principle (subject to the argument of the Crown on the text of the old provisions), it would be determinative of the appeal in Mr Karim's favour. The argument (and the view of Jordan CJ) is that the question is to be viewed as one of substance and not form, and, effectively, the Executive is able to decide a question or questions pertaining to sentence by a choice between offence A and offence B. 70The Chief Justice was, however, alone in holding this view. Davidson J and Nicholas CJ in Eq were both of the view that the Black Marketing Act, s 4 was Constitutionally valid. It is necessary to refer to their reasoning because in the High Court in Fraser Henleins their reasoning was expressly adopted by various members of the Court. 71Importantly, at 312, Davidson J described the argument and the issue in two ways: "The issue turns on whether the Committee itself or the Attorney-General or both acting together, are authorised to exercise a judicial function although not a Court, or whether the functions they do exercise interfere invalidly with the judicial power of the tribunal invested with the function of hearing and determining charges under the Act." 72The first way of putting the matter captures the second element of Mr Karim's argument; the second way goes close to capturing the third element. In any event, it is clear that what was at stake was the Constitutional validity of the provisions, however one expressed their impugnment. 73Davidson J expressed the view that it was entirely a matter for the Executive to choose the charge to be laid: 312; and the advice taken was ministerial and part of that process: 313. The Committee and the Attorney-General were not exercising judicial functions. Davidson J said that minimum penalties were permissible. In expressing his views about the duality of offences under the two bodies of legislation and the harshness of the possible results, Davidson J expressed himself forcefully at 313 - 314: "The peculiarity of the Black Marketing Act is that it merely attaches another name and exceedingly high minimum penalties to offences already created under the National Security Act 1939, which by s 10 are misdemeanours punishable without prescribed limit upon indictment and within prescribed maximum limits upon summary conviction. Then under s 4(4) of the Black Marketing Act, the Attorney-General is vested with the power of deciding upon facts and advice, which cannot be checked by cross-examination or by hearing the accused person, that the latter shall be exposed to the risk of much more serious punishment than is provided by the regulations made under the other Act which creates the offence that has been committed. The result is that, if on the evidence before the Court it is found that only a technical breach of the regulations has been committed, or there is no real criminality or moral turpitude, the minimum penalty provided by the Act must be imposed, although considered by the Court to be entirely unsuitable. The gross injustice of such a procedure has already been exemplified in another proceeding which recently came before this Court: Ex parte Gerard (1944) 61 W.N. 232; Austn Digest (1944) 131. There, possibly because other information was placed before the Committee and the Attorney-General than that which was submitted as evidence before the Court and which was, therefore, presumably inaccurate, the punishment inflicted was outrageously disproportionate to the offence of which the accused was found guilty. Fortunately the proceedings were so defective in other respects that the conviction was set aside. In the present case also the penalty is excessive, but the immediate question is solely whether the Attorney-General was lawfully vested with the power he has exercised. No doubt the legislature realised the extreme danger of persons being subjected to ignominious and serious punishment which the circumstances disclosed by the evidence might not warrant, and therefore endeavoured, by the advice of a preliminary secret investigation, to render the risk of such a result less likely. But in reality what has happened is that a member of the Executive has been furnished with the power to say with regard to offences, the punishment of which has already been provided for and vested in the Judiciary, that the latter shall no longer exercise their discretion in that respect, but in some instances, if there is a conviction, shall award not less than the minimum penalty although that penalty may be considered, having regard to the facts, to be oppressive." (emphasis added) Davidson J recognised the potential gross injustice of the prosecution under the Black Marketing Act and, implicit within that, the potential for inequality of outcomes by reference to two offenders. 74The reasoning of Davidson J concluded at 314 - 315, with, to a degree, an emphasis on the form of the legislation that had been eschewed by Jordan CJ, as follows: "In this sense the Legislature of the Commonwealth has vested in the Attorney-General a power which is not judicial and although it has the effect of limiting in some degree the discretion of the Court in imposing penalties, that limitation only operates in the future upon a contingency of a conviction by the Court. The position would perhaps be different had the Parliament enacted that the judicial tribunal before which the charge was heard might only record a conviction in order that the penalty might be assessed and imposed by the Attorney-General or the Executive. In such circumstances there would be a decision upon transactions had as involving the creation of an instant liability at that stage on the person convicted. Then there would be a judicial as distinct from either a legislative or executive act. But in the conditions that are actually under consideration the act of Parliament remains purely legislative and is not open to attack. In my opinion, therefore, such a form of legislation does not impinge upon any restriction to its operation under the Commonwealth of Australia Constitution Act (63 & 64 Vict. c. 12), and this objection to the conviction on these grounds must also fail." 75The reasoning of Nicholas CJ in Eq at 318 - 320 was to similar effect, though expressed more briefly. 76Arguments as to the Constitutional invalidity of s 4 of the Black Marketing Act were put to the High Court in Fraser Henleins. Latham CJ at 119 - 120 could see no judicial power being exercised by the Attorney-General or the Committee. The choice of charge, he said, imposed no penalty, though it exposed a person to the risk of a particular penalty. He agreed with the reasoning of Davidson J and Nicholas CJ in Eq in Ex parte Coorey. Starke J at 121 - 122 refused to characterise anything done by the Attorney-General as other than administrative. He also rejected the notion that the legislative prescription of maximum and minimum sentences was an exercise (or usurpation) of judicial power, saying at 121 - 122: "It cannot be disputed that the legislature has power to prescribe sanctions for the acts which it prohibits. And, if a maximum penalty, why not a minimum penalty; that is a matter of policy and not of law, however harsh and unwise the legislation. Consequently, the contention that the Black Marketing Act contravenes s 71 of the Constitution fails, as was also held by a majority of the Supreme Court of New South Wales in Ex parte Coorey." 77Dixon J at 124 - 125 adopted the reasoning of the majority in Ex parte Coorey. McTiernan J adopted the conclusion of the majority in Ex parte Coorey. Williams J at 139 refused to view the Attorney-General's or Committee's role as anything but administrative and saw the exercise of judicial power as having commenced at the launch of the prosecution. 78The effect of Fraser Henleins is that the High Court has held Constitutionally valid an Act which provides for mandatory minimum sentences for offences identical to other offences created under other Commonwealth legislation with different and lower sentences. The legislation is not invalid as investing those who make the choice of charge with judicial power, nor as interfering with the exercise of judicial power in the sentencing process. These conclusions were reached notwithstanding the express recognition in the reasons of Davidson J (adopted by Latham CJ, Starke J, Dixon J and apparently McTiernan J) that the regime of dual penalties (one being mandatory) for effectively the same conduct could produce gross injustice. 79Mr Karim's submission was that this Court was not bound to apply Fraser Henleins in defeating the first element of his argument. I disagree. The conclusion as to the validity of s 4 of the Black Marketing Act may not have involved considerations of equal justice; but it was a decision of the High Court on a relevantly identical legislative structure, with cognate Constitutional arguments. Further, notions of gross injustice were rejected as irrelevant. To put Fraser Henleins to one side would be, to use the words of Brennan CJ in Ravenor, to employ a new argument contrary to a holding of the High Court to undermine the authority of that decision. 80The first element of the argument fails. The second and third elements - the invalid conferral of judicial power on the Executive and the empowerment of the courts as indispensable and impartial tribunals 81There is a close relationship in argument between the second and third elements and they will be dealt with together. 82It was accepted by Mr Karim at the hearing of the appeal that the second element of the argument was foreclosed by Fraser Henleins. Notwithstanding that concession, it is helpful for the purposes of the third element to understand how it was put in argument, prior to the acceptance of the binding effect of Fraser Henleins, that the second element was made out. 83I should add, at this point, that not only was Fraser Henleins more than a significant obstacle to the success of the second element, but the later decision of the High Court in Palling v Corfield [1970] HCA 53; 123 CLR 52 also stood in its way. The case is of relevance, not only as to how Mr Karim put his second element (and indirectly how he put his third) but also to the broader submissions of the Commission on mandatory minimum sentences. 84In that case, Mr Palling was charged with an offence under s 49(1) of the National Service Act 1951 (Cth) of failing to attend for a medical examination upon being required by notice under the Act to do so. Section 49(2) of the National Service Act provided that upon the conviction of a person under s 49(1), the Court shall, if the prosecution so requests, ask the convicted person whether he was willing to enter into a recognizance to comply with the requirements of any notice for medical examination, and that if no such undertaking be given the court shall sentence him to imprisonment for seven days. The magistrate found the offence under s 49(1) proved, and adjourned the hearing pending its transfer to the High Court for the argument as to the Constitutional invalidity of s 49(2). 85The arguments put as to Constitutional validity were as follows. First, s 49(2) sought to vest part of the judicial power of the Commonwealth in the prosecution. The Court was merely the conduit for the automatic consequences of the choice made by the prosecution. It was accepted that Parliament could fix an automatic sentence without giving the Court any discretion, but it could not fix an automatic sentence conditional upon the request of a person. The activation of the condition is part of the judicial power, as a binding and authoritative decision that leads consequently to a recognizance or imprisonment. It is effectively the power to determine the nature of the sentence. Fraser Henleins was distinguished as only concerned with the choice of charge, not with a condition so close to the act of sentencing. Secondly, whether or not part of the judicial power was vested in the prosecution, s 49 constituted an interference with a court exercising federal jurisdiction in violation of the separation of power provided for in Chapter III. The court was taking direction, or was required to act on a request, from a third party. This way of putting the matter can be seen to anticipate the jurisprudence that underpins the third element of Mr Karim's argument. Thirdly, s 49(2) was an unconstitutional delegation of legislative power to the prosecution to determine the appropriate penalty. 86The first argument above did contain a concession that the Parliament could fix a mandatory sentence. The legitimacy of a mandatory (minimum) sentence without more was not attacked by Mr Karim in the way he argued the appeal (though his written submissions and the arguments of the Commission did challenge this). 87The Court rejected all the arguments. In so doing, Barwick CJ said, amongst other things: (a) at 58 "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 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. ... 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." These are unequivocal words supporting the legitimacy of mandatory sentences and the removal of discretionary sentencing authority from the court. (b) at 58 - 59 "Also it is within the competence of 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. The fact that the happening of the event or the formation of the opinion is in reality determinative of the penalty or imprisonment to be ordered does not make the bringing about of the event or the formation or communication of the relevant opinion by some person or body other than a court an exercise of judicial power. There may be limits to the choice of the Parliament in respect of such contingencies but the nature of the contingency in this case does not require any examination or discussion as to the existence and, if they exist, the nature of such limits." These are unequivocal words rejecting the essential propositions of Jordan CJ in Ex parte Coorey and, in the second element of Mr Karim's argument, the proposition that the imposition of the sentence nominally by the Court, but necessarily consequent upon a contingent decision of a member of the Executive, was the (wrongful purported) attempt to vest judicial power in the Executive. (c) at 59: "Further, the Parliament may leave it to the executive to choose one of two alternative procedures for the prosecution of an offence, the penalty or punishment being determined either absolutely or within prescribed limits by the process of prosecution." These are unequivocal words rejecting the essential proposition of both Jordan CJ in Ex parte Coorey and, in the second element of Mr Karim's argument, the proposition that the Executive's act of selecting the charge from overlapping offences with different sentencing consequences involved a choice in the Executive of a judicial character. 88Barwick CJ then quoted from, and agreed with, the judgment of Latham CJ in Fraser Henleins. 89The other members of the Court expressed similar views. Menzies J, at 63, noted that the three ways in which the argument was put were not separate. Much the same comment may perhaps be made here about the three elements of Mr Karim's argument. Menzies J said that the three ways of putting the argument foundered on a misconception of the role of the prosecution. The initiating request was not the exercise of judicial power. He made this clear in the example he gave at 64 and in the reliance on Fraser Henleins, as follows: "To initiate judicial action in such a way is not, however, to exercise judicial power. An enactment that, upon conviction for murder, the court shall sentence a convicted person to death, unless the prosecution should ask for a sentence of imprisonment, which, in that event, the court shall impose for such term as it decides, would vest in the prosecution the power of negativing the imposition of the death penalty and requiring a sentence of imprisonment, but, in exercising that power, the prosecution would not be exercising judicial power; it would be exercising an administrative discretion upon non-judicial grounds. The ground might be to carry out some government policy, of which the prosecutor had been made aware; it might be on account of the age, the sex or the infirmity of the person convicted; it might be because of the circumstances of the killing; it might be without any particular reason at all to justify it. The prosecution would not have to justify any request which it made. An arbitrary request would be just as effective and as unchallengeable as a request based upon the most compelling of reasons. If authority that the exercise of an administrative authority in connexion with proceedings in court is not the exercise of judicial power be required, it is, I think, to be found stated clearly in Fraser Henleins Pty Ltd v Cody (1945) [1945] HCA 49; 70 CLR 100, and particularly in the judgment of Latham CJ (1945) 70 CLR at pp 119 and 120." 90Windeyer J agreed with the other members of the Court. 91Owen J at 66 - 67 applied Fraser Henleins to defeat the primary argument that judicial power was conferred on the prosecution. Owen J separately rejected the argument about the interference with judicial power by the condition of prosecutorial request in connection with a mandatory sentence. He said that there was "no substance in the submission": 67. 92Walsh J at 68 expressed himself unequivocally concerning mandatory sentences: "It could not be disputed, and was not disputed, that the Parliament may make a valid law by which no discretion is given to the court as to the punishment of a person convicted of an offence. The Parliament may itself specify what sentence is to be imposed. When an Act requires a court, upon an offence being proved, to pass a mandatory sentence this does not involve any unconstitutional intrusion by the legislature into the field of judicial power. The relevant exercise of judicial power, when there is a prosecution for an offence against a law of the Commonwealth, consists of the application of the law by the court, according to the terms of the law. If the Act provides for a mandatory sentence, the only power of sentencing which the court has in that case is the power to impose that sentence." 93Walsh J then at 68 - 69 expressed himself unequivocally concerning the conditional imposition of a mandatory sentence. In so doing he applied Fraser Henleins. At 70, Walsh J described the argument that s 49(2) was an impermissible interference with the processes of the Court as "untenable". 94Thus, Fraser Henleins and Palling contain powerful statements (some only dicta, but strongly expressed and considered dicta) to the effect that mandatory sentencing provisions are within the authority of Parliament, that Parliament can provide for the mandatory sentence upon a condition or request effected by a third party, being a member of the Executive, that that legitimate condition or request includes the prosecutorial choice between two offences for the same conduct carrying differing sentencing regimes, one having a mandatory minimum penalty, that such a choice does not involve conferral of judicial power on the prosecution or any direction of the Court by the prosecution and that such laws are valid even in circumstances where they operate with gross injustice. 95It is to be noted, however, that in Palling, Barwick CJ did say at 59 that there may be limits to Parliament's choice of contingencies. 96To return to Mr Williams' enunciation of the second element of Mr Karim's argument, he relied on Chu Kheng Lim at 26 - 28 and 36 - 37. The essential relevant proposition said to flow from these passages is that the Parliament cannot direct a court as to the manner and outcome of the jurisdiction exercised by the Court. This essential proposition has been applied in later High Court cases: Gypsy Jokers Motorcycle Club Inc v Commission of Police [2008] HCA 4; 234 CLR 532 at 560 [39]; International Finance Trust Co Ltd v New South Wales Crimes Commission [2009] HCA 49; 240 CLR 319 at 360 [77]; and South Australia v Totani [2010] HCA 39; 242 CLR 1 at 48 - 49 [70] - [72], 63 [132] - [133] and 66 [143] - [144]. 97The argument was that Chu Kheng Lim and these later cases enunciate a new principle overtaking the reasoning in Fraser Henleins and Palling. Apart, however, from the binding force of these two decisions and the propositions able to be extracted from them to which I have referred above, two further things can be said. First, the cases after Chu Kheng Lim express the principle in terms of the impairment of the courts as independent and impartial tribunals. This reveals the clear interconnection between the second and third elements of Mr Karim's argument. Secondly, though the principle was expressed thus in Chu Kheng Lim and later cases, that does not mean, on the existing authorities, that the prosecutorial choice of charge, where there are overlapping charges, necessarily falls to be characterised as a direction to the Court as to the manner and outcome of its jurisdiction. The reasoning embodied in the judgments in Fraser Henleins and Pallings and the majority in Ex parte Coorey was to the effect that the executive and judicial roles were separate, that there was no executive act that interfered with the exercise of judicial power, that Parliament prescribed the penalties that the courts (and only the courts) imposed, in respect of charges chosen by the executive within its legitimate sphere of activity, and that there was no direction of the Courts by the Executive. 98The reasoning in Fraser Henleins, Palling and Ex parte Coorey can be seen to defeat not only the second element of Mr Karim's argument, but also the third. Before the third element to the argument can be seen to impugn the validity of these provisions, it would be necessary to negate the propositions extracted from those cases. 99It can be accepted that French CJ in Totani at 48 - 49 [71] recognised that Parliament's authority to pass a law requiring a court to make specified orders upon the satisfaction of a condition, which may be a decision of the Executive, was subject to the qualification that this power "will not authorise a law which subjects a court in reality or appearance to direction from the Executive as to the content of judicial decisions". That qualification, of itself, does nothing to alter the reasoning or conclusions in Fraser Henleins, Palling and Ex parte Coorey that in circumstances there, which are on all fours with the circumstances here, there is no direction to or interference with the court or judicial power that it exercises, by the Executive's choice of charge, and that both the Courts and the prosecution act within their legitimate fields of Constitutionally recognised power. 100Support was sought from the legislative history of old s 233C to conclude that the provision cannot be regarded merely as conferring jurisdiction on a court with a duty to exercise sentencing power upon conviction. The jurisdiction to sentence offenders for an offence under s 232A already existed, independently of, and prior to, old s 233C. That does not, however, foreclose a choice available to Parliament to legislate for a higher penalty accompanied by mandatory minimum sentences, if it considers it appropriate, assuming Fraser Henleins applies. That the provision was intended to be a strong general deterrent does not detract from its legitimacy in this respect. 101Embedded within the submissions concerned with the third element is a consideration to which I will come in dealing with the submissions of the Commission: that the task of sentencing is, in the final analysis, essentially judicial in character and Parliament cannot direct a mandatory minimum sentence. That cannot withstand Fraser Henleins, Palling and Ex parte Coorey (including the reasons of Jordan CJ). The submissions of the Human Rights Commission 102The first matter that needs to be addressed from the submissions of the Commission is the submission made in Mr Karim's written submissions and later abandoned by him at the appeal, that mandatory minimum penalty provisions of themselves are unconstitutional. 103The aforementioned argument was supported by the Commission by reference to international human rights principles that were said to have been absorbed into the common law of Australia, against which the Constitution is to be interpreted and applied. 104The starting point is to recognise that the authorities to which I have referred: Fraser Henleins, Palling and Ex parte Coorey, to which one may add R v Ironside [2009] SASC 151; 104 SASR 54; Lloyd v Snooks [1999] TASSC 117; 9 Tas R 41; and Wynbyrne v Marshall [1997] NTSC 120; 117 NTR 11, have recognised the validity of mandatory minimum sentences. 105These authorities speak against the basal proposition that is essential to the success of any argument that mandatory sentences are unconstitutional: that the notion of judicial power has developed to a point whereby it can be said that the judicial function in sentencing necessarily entails a sufficient element of evaluative discretion to enable the court to reach an appropriate and just sentence, or avoid an unjust, arbitrary or cruel sentence. The potentiality of injustice in mandatory punishment is impossible to gainsay: see Sir Gerard Brennan, "Mandatory Sentencing: Rights and Wrongs" (2001) 7(2) Australian Journal of Human Rights 3; D P Cumaraswamy, "Mandatory Sentencing: the Individual and Social Costs" (2001) 7(2) Australian Journal of Human Rights 7. Such potential for injustice directs attention to the very essence of law and the implicit content of judicial power in a Constitutional structure for the ages. As Windeyer J said in Cobiac v Liddy [1969] HCA 26; 119 CLR 257 at 269: "Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice." (emphasis added) 106The historical development of the common law has seen many offences accompanied by fixed and mandatory punishment, often capital. Historical analysis does not, however, provide an exclusive premiss for a conclusion that in the present state of development of the common law and how it views the nature of, and content of, judicial power, there are no limits to the legitimate use of mandatory sentences. The Commission sought to draw out these matters by reference to fundamental human rights: the prohibition on cruel, inhuman and degrading treatment or punishment and the inherent concept of gross disproportionality therein: Art 7 of the International Covenant on Civil and Political Rights (ICCPR) and Art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Vinter & Ors v United Kingdom [2012] ECHR 61; the prohibition of arbitrary detention and the guarantee of a fair hearing: Art 9 of the ICCPR; the principle of equal justice: Art 14 of the ICCPR and Art 10 of the Universal Declaration of Human Rights; and the right to a review of sentence: Art 14 of the ICCPR. 107No argument was put, nor could it be put, that these international instruments were binding in Australia without more. What was put was the relevance of fundamental international norms to the development of the Australian common law, against which Constitutional norms and implications are to be recognised and articulated. 108Constitutional principles, to a degree, are interpreted and applied having regard to changing circumstances of society: Australian National Airways Pty Ltd v Commonwealth [1945] HCA 41; 71 CLR 29 at 81; Victoria v Commonwealth [1971] HCA 16; 122 CLR 353 at 396 - 397; Singh v Commonwealth [2004] HCA 43; 222 CLR 322 at 385 [159]. The interpretation of a fundamental law by reference to its common law context, and the effect on the common law of the content of the fundamental law are deeply intertwined processes. The relevant Constitutional norms here are those concerned with the functioning of the judicial branch of government and, as such, are peculiarly capable of being affected by, and affecting, the common law notions of judicial power, judicial method and inhering conceptions of justice and fairness. 109The norms and conceptions of fairness, justice and equality before the law have informed the development of substantive and powerful legal and Constitutional principles: see the principles and cases at [53] - [55] and [96] above. To which can be added Kioa v West [1985] HCA 81; 159 CLR 550 at 584 - 586, 601, 612 - 615. 110Parliament's expression of view as to the seriousness of a matter or of the proper content of a societal norm will, subject to the process of judicial interpretation and to the constraints of any relevant Constitutional limitation, be law. To the extent, however, that any relevant Constitutional limitation rests in whole or in part on human and legal conceptions such as fairness, justice and equality, the assessment of the content and reach of any such Constitutional limitation cannot be concluded, forestalled or foreclosed by Parliament's statement or assertion of the social norm or of its satisfaction of those conceptions. That is for the Courts authorised to interpret the law and to decide questions of Constitutional validity. 111The operation of norms of fairness, justice and equality before the law and their reflections in a lack of arbitrariness, and a lack of differential treatment or discrimination without a reasonable relation to a proper objective, characterise the judicial process and its expected outcomes. 112If one were to approach these provisions here, shorn of the binding effect of Fraser Henleins and Palling and the majority in Ex parte Coorey, and if one were to assess the judicial process in the necessary operation of old s 233C and new s 236B, the following could be said. 113One aspect of the context of the creation of the offences of people smuggling and the related aggravated offences was the need for significant deterrence for participation in serious crime. I have earlier referred to the significance and seriousness of the conduct, and the danger it poses, not least to the people who are smuggled. The mandatory minimum sentences were intended to form part of that legislative structure of deterrence. 114The geographical and historical context of the legislation would lead one to expect that seafarers of countries nearby to Australia, in particular Indonesia, might participate in the voyages of persons to Australia. The physical, social and economic circumstances of such voyages were likely to include the following: fishing vessels of various sizes, ages and conditions of seaworthiness, and crews of various ages and skills, often uneducated, illiterate and indigent, hailing from communities marked by those disadvantages. The seafaring responsibilities of crew would be likely to vary from unskilled deckhand to master. Of course, those on board may include those who are intimately involved at a commercial or organisational level with people smugglers. 115Against such an obvious context the relevant provisions are cast widely and generally. New s 233C only requires an offender to "facilitate" the smuggling to Australia of five people who have no lawful right to come. Any member of the crew by the conduct of his or her shipboard duties would fall into that category. Old s 232A also requires "facilitation", but involves an element of recklessness. Once again any member of the crew would fall into that category. 116The mandatory minimum penalties are severe, indeed harsh. That is the will of Parliament: for other than a repeat offence, say a first offence, imprisonment for five years (with a three year non-parole period), which may be inflicted upon an illiterate and indigent deckhand, in circumstances where he or she or someone like him or her could have been prosecuted under a provision whereby the sentencing judge would have the duty to assess all the offender's circumstances, including the objective seriousness of his or her offending before deciding on an appropriate sentence. 117The offender (thus incarcerated for 3 to 5 years) could be justified in concluding, in a simple way, that, as a matter of substance, he or she had his or her sentence in a significant respect dictated, in advance, by a decision of the Australian executive government by its choice of one of two alternative charges, and that his or her stay in prison has been determined out of public view for reasons of administrative or political choice, and not law. The offender could think that he or she has been treated in a way that was unequal to either someone charged under the other provision or to his or her legal responsibilities to the Australian community under the other provision. 118That simple approach attracted the support in 1944 of Sir Frederick Jordan. To use and paraphrase the words of Sir Frederick Jordan, in a civilised community the exercise of such power to incarcerate should not be so transparently a choice for the Executive without the existence of any relevant differentiating factor between the two provisions, both dealing with substantially the same conduct. As reasoning to a legal consequence, however, this approach is precluded by the authorities to which I have referred. 119The norms and conceptions inhering in the exercise of judicial power incorporate from their roots in the common law the norms that now characterise international human rights - a rejection of inequality, arbitrariness, discrimination, unfairness, injustice and cruelty. That the common law and legal punishment in earlier eras exhibited a severity that might shock today, does not mean that by the values and political and legal structures of the time any severity could not be justified, nor does it mean that contemporary conceptions of punishment need embrace any such severity. Indeed, these considerations reveal the effect of changing circumstances on the content of law and its informing norms. 120For mandatory minimum sentences to be unconstitutional, a Constitutional constraint upon Parliament must be recognised that the assessment of a just and appropriate sentence is ultimately a judicial task, by the deployment of judicial method. The reconciliation of such a proposition with the authority of the Parliament to set societal norms involves deep questions of the relationship between Parliament's power and the inhering essence of law and judicial power. The source of an affirmative answer to the question of the existence of such constraint may lie in the rooted strength of the conception of equal justice and of the rejection of any power in Parliament to require courts to make orders that are arbitrary, grossly disproportionate or cruel by reference to inhering norms of fairness, justice and equality. 121Here, in relation to these offences, an illiterate and indigent deckhand having little or no knowledge of, or contact with, the organisers of the smuggling, and knowing little about the voyage in respect of which he or she was charged, pondering his or her incarceration for five years for a first offence, could legitimately conclude that, at a human level, he or she had been treated arbitrarily or grossly disproportionately or cruelly. 122Once again, existing authority precludes such notions informing reasoning to a relevant legal consequence. 123If I may respectfully say, it may be that a view as to the potential injustice of the operation of mandatory minimum sentences led to the direction on 27 August 2012 by the Commonwealth Attorney-General to the Director of Public Prosecutions under the Director of Public Prosecutions Act 1983 (Cth), s 8(1) that prosecutions under new s 233C were not to be instituted, carried on or continued against a crew member, unless it was a repeat offence, or the person's role extended beyond being a crew member or a death had occurred on the voyage. If I may also respectfully say, the salutary amelioration of the potential arbitrary and harsh effect of s 233C on illiterate and indigent foreign seafarers by such direction rather makes Sir Frederick Jordan's point as to the central place of the Executive in the sentencing outcome under the section's operation with two overlapping provisions. 124The helpful submissions of the Commission founder on the same rocks as those of Mr Karim. 125The appeals must be dismissed. 126The resentencing of the applicants therefore does not arise. It was quite plain from the argument, however, that the applicants or some of them would be likely to seek special leave to appeal from the dismissal of the appeals. In these circumstances, whilst it may not be appropriate to hypothesise what a differently constituted court might do on sentence, it is not inappropriate that I express my view that if the mandatory minimum sentence provision were held to be invalid, there would be grounds on which it could be argued that the sentences for these applicants were excessive. 127The orders that I propose are: 1. Grant leave to the Australian Human Rights Commission to intervene as amicus curiae. 2. The application for leave to appeal against sentence of Sakarias Alomalu be dismissed. 3. The applications for leave to appeal of Mr Mursid Karim, Mr Bimbi Yusuf Bin Lahaiya, Mr Bayu (aka Ilham Dahlan) and Mr Bonang Darius Magaming be granted. 4. The appeals of Mr Mursid Karim, Mr Bimbi Yusuf Bin Lahaiya, Mr Bayu (aka Ilham Dahlan) and Mr Bonang Darius Magaming be dismissed. 128McCLELLAN CJ at CL: I have had the benefit of reading the reasons for judgment of Allsop P in draft. I agree with his Honour's conclusion expressed in [94] for the reasons he gives. 129I would prefer to express no concluded view about the situation if these decisions were not binding on this Court. Although the criminal law initially developed as part of the common law it must now be viewed as primarily the province of the Parliament, both to define the conduct which will constitute an offence and the parameters within which an appropriate penalty for that offence may be determined by a court. It cannot be doubted that Parliament can fix the maximum penalty which may be imposed. If Parliament can provide the maximum penalty I would presently be inclined to the view that it may also provide the minimum penalty which may be imposed. 130With respect to the decision to prosecute it has also been accepted that it is the role of the executive to prosecute for an offence. Furthermore, it is the prosecutor who must determine the offence to be prosecuted. This will of course determine the parameters of the available penalty if the offence is proved. 131When there is a choice between prosecuting either a Commonwealth or State offence it has been accepted that the executive has a discretion, which is not confined, to determine whether to prosecute under one or the other provision. It has also been accepted that any sentence which is imposed should reflect the sentence required for that offence without consideration of the penalty which may have been appropriate if proceedings had been brought for a breach of the other provision: R v El Helau (2010) 267 ALR 734; Staden v DPP (2011) 254 FLR 467; Pantagis v The Queen [2012] VSCA 160. 132With respect to the applications for leave to appeal against sentence I would also prefer not to express a view. In my judgment to do so would be artificial and unfair to the relevant individuals. It requires this Court to determine a sentence for offences where the prevailing pattern of sentences has been fixed by reference to legislation which is presently the law, but which, for this purpose, must be assumed to be invalid. Unless and until set aside by the High Court I do not believe any court should endeavour to identify an appropriate sentence other than in accordance with that legislation. 133I also believe that it would be unfair to the individual offender for this Court to determine the sentence which it would have imposed if it could have set aside the relevant legislation. It would have the effect of informing the relevant person that, but for the fact that the Parliament has provided a minimum term, the sentence which has been imposed is excessive thereby heightening any sense of personal injustice which they may feel. The true position is that the present sentences are just because they are the sentences which the law as provided by the Parliament requires be imposed. 134For these reasons I agree with orders 1, 2, 3 and 4 of the orders proposed by Allsop P. 135HALL J: I agree with orders 1, 2, 3 and 4 as proposed by the President, for the reasons set out in his Honour's judgment. 136BELLEW J: I agree with orders 1, 2, 3 and 4 as proposed by the President, for the reasons set out in his Honour's judgment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2013