The constitutionality of minimum mandatory sentencing regimes: a rejoinder

Hemming, Andrew (2013) The constitutionality of minimum mandatory sentencing regimes: a rejoinder. Journal Of Judicial Administration, 22 (4). pp. 224-234. ISSN 1036-7918


This rejoinder is a reply to an article published in the JJA by Anthony Gray and Gerard Elmore, which argued that minimum mandatory sentencing provisions undermine judicial independence and breach the principle of separation of powers, resulting in a loss of public confidence in the independence of the judiciary. This rejoinder challenges such an argument on five grounds. First, historically, the Crown and later the Parliament decreed the sentence for a particular offence, such as death for murder, which judges were bound to enforce. Second, there is nothing in the Commonwealth of Australia Constitution Act, and Chapter III in particular, to indicate Parliamentary control of sentencing impacts in any way on the 'autochthonous expedient'. Third, s51 of the Australian Constitution, which lists the legislative powers of the Federal Parliament, does not include criminal laws which are the province of the States. Fourth, no support can be found in overseas jurisdictions such as the United States, the United Kingdom, and Canada. Fifth, public confidence in the judiciary has been undermined by inadequate and inconsistent sentencing by the judiciary, which has led some State Parliaments to introduce legislation setting down mandatory sentences and/or sentencing guidelines.

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Copyright © 2013 Thomson Reuters (Professional) Australia Limited. Permanent restricted access to published version due to publisher copyright policy. Article Citation: 22 JJA 224
Faculty/School / Institute/Centre: Historic - Faculty of Business and Law - School of Law
Date Deposited: 09 Jul 2013 02:14
Last Modified: 11 Jul 2014 04:29
Uncontrolled Keywords: constitutionality; mandatory; minimum; sentencing regimes
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
16 Studies in Human Society > 1602 Criminology > 160203 Courts and Sentencing
18 Law and Legal Studies > 1801 Law > 180122 Legal Theory, Jurisprudence and Legal Interpretation
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940403 Criminal Justice

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