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.