The constitutionality of minimum mandatory sentencing provisions

Gray, Anthony and Elmore, Gerard (2012) The constitutionality of minimum mandatory sentencing provisions. Journal of Judicial Administration, 22 (1). pp. 37-47. ISSN 1036-7918


This paper considers the increasing use of minimum mandatory sentencing provisions in Australian law. A prime example is the provisions in the Migration Act 1958 (Cth) dealing with so-called people smugglers, imposing minimum penalties of up to eight years' imprisonment. The paper argues that by significantly limiting judicial discretion in such a way and by not allowing judges to take into account mitigating factors in a way they normally would, the provisions undermine the separation of powers for which the Constitution provides, raising Kable type arguments against the validity of such provisions, as well as rule of law concerns, in that minimum mandatory sentencing creates the possibility of arbitrary exercise of power against an individual.

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Permanent restricted access to published version due to publisher copyright policy.
Faculty / Department / School: Historic - Faculty of Business and Law - School of Law
Date Deposited: 30 Aug 2012 05:22
Last Modified: 23 Aug 2017 02:45
Uncontrolled Keywords: mandatory sentencing, Kable, separation of powers, rule of law
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180108 Constitutional Law
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940403 Criminal Justice

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