High Court of Australia

Magaming v The Queen [2013] HCA 40

87 ALJR 1060; 302 ALR 461

11 Oct 2013

Case Number: S114/2013


French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ


Constitutional law – Judicial power of the Commonwealth – Constitution, Ch III – Appellant crew member of boat carrying passengers with no lawful right to come to Australia – Appellant convicted of aggravated offence of smuggling group of at least five non citizens reckless as to whether they had lawful right to enter Australia under s 233C(1) of Migration Act 1958 ("Act") – Section 236B of Act prescribed mandatory minimum sentence for offence under s 233C(1) of five years' imprisonment with minimum non parole period of three years – Whether ss 233A(1) and 233C(1) coextensive – Whether prescription of mandatory minimum sentence for offence under s 233C(1) conferred judicial power to determine punishment on prosecuting authorities – Whether s 236B incompatible with institutional integrity of courts – Whether s 236B required court to impose arbitrary and non judicial sentence.

Words and phrases – "aggravated offence", "institutional integrity", "judicial power", "mandatory minimum penalty", "prosecutorial discretion".

Constitution – Ch III.

Migration Act 1958 (Cth) – ss 233A(1), 233C(1), 236B.

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