Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455 (25 June 1992)

HIGH COURT OF AUSTRALIA

LEETH v. THE COMMONWEALTH OF AUSTRALIA [1992] HCA 29; (1992) 174 CLR 455
F.C. 92/022

Constitutional Law (Cth)

High Court of Australia
Mason C.J.(1), Brennan(2), Deane(3), Dawson(1), Toohey(3), Gaudron(4) and McHugh(1) JJ.

CATCHWORDS

Constitutional Law (Cth) - Powers of the Commonwealth Parliament - Offences under Commonwealth laws - Imposition of penalties - Minimum term of imprisonment - Federal jurisdiction invested in State courts - State courts empowered to fix minimum term for offences against Commonwealth law by reference to State minimum term law - Validity - Whether unlawful discrimination - Whether imposition of non-judicial function on court exercising federal jurisdiction - The Constitution, (63 and 64 Vict. c. 12), ss. 71, 77(iii), 80, 120 - Commonwealth Prisoners Act 1967 (Cth), s. 4(1) - Crimes Legislation Amendment Act (No. 2) 1989 (Cth), s. 30(1).

HEARING

Canberra 1991, September 24;
Brisbane, 1992, June 25. 25:6:1992

DECISION

MASON C.J., DAWSON AND McHUGH JJ. The plaintiff pleaded guilty in the Supreme Court of Queensland to a number of offences, including three offences under s.233B of the Customs Act 1901 (Cth). For those three offences he received various sentences, but it is necessary to refer only to the offence for which he received the heaviest sentence because the other sentences were made concurrent with that sentence. For that offence, conspiring to import into Australia a commercial quantity of cannabis resin, the plaintiff was sentenced to imprisonment with hard labour for a term of twenty-five years with a recommendation that he not be considered for parole until he had served fourteen years of that term. The Court of Criminal Appeal deleted the recommendation in relation to parole and ordered instead that a non-parole period of twelve and one half years be fixed.

2. The plaintiff was a federal offender and in fixing a minimum term of imprisonment the Court of Criminal Appeal acted in accordance with s.4 of the Commonwealth Prisoners Act 1967 (Cth). That section, which appeared under the heading "Fixing of minimum term of imprisonment", relevantly provided:
"(1) Where a federal court or a court of a State or
Territory sentences a federal offender to a term of
imprisonment -
(a) if, under the law of the State or Territory where
the offender is convicted, a court of the State
or Territory is required (or is required except
in specified circumstances), when sentencing a
State offender or a Territory offender to a like
term of imprisonment, to fix a lesser term of
imprisonment during which the State offender or
Territory offender is not to be eligible to be
released on parole - the court shall fix (or
shall, unless the like circumstances exist, fix)
a lesser term of imprisonment during which the
federal offender is not to be eligible to be
released on parole; or
(b) if, under the law of the State or Territory where
the offender is convicted, a court of the State
or Territory is permitted, when sentencing a
State offender or a Territory offender to a like
term of imprisonment, to fix a lesser term of
imprisonment during which the State offender or
Territory offender is not to be eligible to be
released on parole - the court may fix a lesser
term of imprisonment during which the federal
offender is not to be eligible to be released on
parole.
(2) In fixing a lesser term of imprisonment in pursuance
of the last preceding sub-section, the court shall have
regard to the matters to which it would have regard if
the law of the State or Territory in which the offender
was convicted were applicable."
3. Section 29 of the Crimes Legislation Amendment Act (No.2) 1989 (Cth) ("the Amendment Act") repealed the Commonwealth Prisoners Act and Div.4 of Pt 1B of the Crimes Act 1914 (Cth) was added to provide for the fixing of a non-parole period for federal offenders in accordance with its own provisions. Non-parole periods fixed under s.4 of the Commonwealth Prisoners Act by reference to State or Territory law were preserved by s.30(1) of the Amendment Act as if they were non-parole periods fixed under Div.4 of Pt 1B of the Crimes Act.

4. Questions were reserved for the consideration of the Full Court as follows:

1. Was s.4(1) of the Commonwealth Prisoners Act 1967 prior to its
repeal an invalid law of the Commonwealth in so far as it applied
to sentences for offences under s.233B of the Customs Act 1901
(Cth)?
2. Is s.30(1) of the Crimes Legislation Amendment Act (No. 2) 1989 an
invalid law of the Commonwealth in so far as it applies to an
order made or purported to be made under s.4(1) of the
Commonwealth Prisoners Act 1967?

5. The plaintiff submits that s.4(1) of the Commonwealth Prisoners Act, in providing for a minimum term to be fixed by reference to State or Territory law, required or permitted the unequal treatment of offenders because State laws differed significantly in the provision which they made for the fixing of minimum terms. This, it was said, was discriminatory in that it required or permitted the unequal treatment of equals and was, by implication, not permitted by the Constitution. Section 4(1) was said, as a consequence, to be invalid. To the extent that s.30(1) of the Amendment Act purported to preserve an order made under s.4(1) of the Commonwealth Prisoners Act, it was said to be invalid for the same reason.

6. In each of the States at the relevant time there were Acts which provided for the fixing of minimum terms and it is true to say that there were and still are marked differences in the various provisions. It is convenient to speak in the present tense of the provisions in force at the time the plaintiff was sentenced, notwithstanding that some of those provisions have subsequently been amended.

7. The Corrective Services Act 1988 (Q.) provides in s.166(1) that subject to certain exceptions, including the recommendation of a court, a prisoner is not, generally speaking, eligible for release on parole until he has served at least half of the term of imprisonment to which he was sentenced. Section 166(3) provides that upon sentencing a person to a term of imprisonment a court may recommend that he be eligible for release on parole after such period of imprisonment under that sentence as is specified in the recommendation. A person in respect of whom such a recommendation is made is eligible for release on parole at any time after he has served the period of imprisonment specified. The reference in s.166(3) to a recommendation explains why the order of the sentencing judge in this case in relation to a non-parole period was cast in terms of a recommendation. In the Court of Criminal Appeal it was pointed out that the governing provision for federal offenders was s.4(1)(b) of the Commonwealth Prisoners Act which permitted the Court in the relevant circumstances to fix a non-parole period.

8. In New South Wales, s.19 of the Probation and Parole Act 1983 (N.S.W.) requires a court to specify a non-parole period where a person is sentenced to a term of imprisonment of more than three years. Section 20A provides that where a serious offence is involved (serious offences being those listed in a schedule), the non-parole period should be at least three quarters of the length of the sentence for the serious offence. A court is given, under s.21(1), a discretion to decline to specify a non-parole period.

9. Section 17(1) of the Penalties and Sentences Act 1985 (Vict.) provides that if a term of imprisonment of not less than two years is imposed, the court must fix a non-parole period that is at least six months less than the term of the sentence. A court is empowered under sub-s.(2) not to fix a non-parole period if it is inappropriate having regard to specified circumstances.

10. In Tasmania, under s.12A(1) of the Parole Act 1975 (Tas.), the non-parole period in respect of a sentence of imprisonment is a period of six months or a period equal to one half of the period of the sentence, whichever is the greater, but under s.12B a court can, in certain circumstances, order that the person be not eligible for parole or fix a different non-parole period not less than that provided by s.12A(1).

11. Under s.32 of the Criminal Law (Sentencing) Act 1988 (S.A.) a court must fix a non-parole period where a term of imprisonment of one year or more is imposed, but the length of the period is within the discretion of the court. The court may decline to fix a non-parole period if it is inappropriate having regard to specified circumstances.

12. And in Western Australia, under s.37A of the Offenders Probation and Parole Act 1963 (W.A.), a court may order that a convicted person sentenced to a term of imprisonment be eligible for parole. Where such an order is made the person is eligible to be released from prison on parole after having served one-third of the term where the term is not more than six years and, where the term is more than six years, after having served two years less than two-thirds of the term.

13. Section 80 of the Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be held in the State where the offence was committed and, if the offence was not committed within any State, shall be held at such place or places as the Parliament prescribes. Under s.70A of the Judiciary Act 1903 (Cth) the trial on indictment of an offence against a law of the Commonwealth not committed within any State, and not being an offence to which s.70 of the Judiciary Act applies, may be held in any State or Territory. Section 70 provides that when an offence against the laws of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be dealt with, tried and punished in either State or part in the same manner as if the offence had been actually and wholly committed therein.

14. It is apparent that the laws in the various States relating to the fixing of non-parole periods differ and, by reason of a combination of s.4 of the Commonwealth Prisoners Act and s.80 of the Constitution, the minimum term of imprisonment imposed upon a federal offender for a particular offence may have differed according to the State in which he was tried. There was no necessary difference because, within the constraints imposed by the various State provisions, it was generally possible to achieve consistent non-parole periods for offenders committing the same offence in similar circumstances. Indeed, this case is an example.

15. The Court of Criminal Appeal in fixing the minimum term of imprisonment to be served by the plaintiff sought to make it coincide with the minimum term of imprisonment imposed upon a comparable offender named Cornwell who was tried and sentenced in New South Wales. Sentences imposed on other New South Wales offenders for the prohibited importation of the relevant drug, cannabis or cannabis resin, were also considered, but the most comparable offender was Cornwell. He was sentenced by the Supreme Court of New South Wales to a term of imprisonment of twenty-three years with a minimum term of fourteen years. But in New South Wales, unlike Queensland, a sentence runs from the date the offender is taken into custody. In Queensland a sentence runs from the time it is imposed. At the time the plaintiff was sentenced, he had been in custody for eighteen months. Accordingly, and in order to bring the minimum sentence to be served by the plaintiff into line with that to be served by Cornwell, the Court of Criminal Appeal reduced the minimum term of fourteen years imposed upon the plaintiff by eighteen months.

16. The materials before the Court reveal that the actual minimum term which is likely to be served by Cornwell is not fourteen years but eight years and six months. But this is because of the remissions he will receive, coupled with the effect of the transitional provisions of the Sentencing Act 1989 (N.S.W.), and not because of any discrepancy between the minimum term to which he was sentenced and the minimum term to which the plaintiff was sentenced. Section 19 of the Commonwealth Prisoners Act provided that the provisions of a law of a State or Territory relating to the reduction or remission of sentences or minimum terms of imprisonment apply to a federal offender who is serving a sentence of imprisonment in a prison of that State or Territory in like manner as those provisions apply in relation to a State offender or a Territory offender serving a sentence of imprisonment in that prison. And s.33 of the Amendment Act provides that its provisions are not to affect the application of a law of a State or Territory providing for the remission or reduction of State or Territory non-parole periods of imprisonment to federal non-parole periods of imprisonment fixed in respect of federal sentences of imprisonment imposed before the commencing day of the Amendment Act. Understandably enough, the plaintiff makes no complaint about these sections, but it may be observed that, having regard to the widely differing provisions for the remission of sentences in the various States, if uniformity is sought, these sections pose a far greater obstacle to achieving uniformity in the term to be actually served in prison by federal offenders than did s.4 of the Commonwealth Prisoners Act.

17. Under s.5 of the Commonwealth Prisoners Act the Governor-General was empowered to make a parole order directing that a federal offender be released from prison after he had served any minimum term fixed in relation to him. The Governor-General could amend or revoke a parole order and the parole order was required to be subject to a condition that the person released on parole be subject to the supervision of a parole officer. Section 21 of the Act provided that the Governor-General might arrange with the Governor of a State for the performance by officers of that State of the functions of a parole officer under the Commonwealth Prisoners Act. It is apparent from the second reading speech in relation to the Commonwealth Prisoners Act that the Commonwealth had used in the past, and intended to use under that Act, State parole authorities with respect to federal offenders.

18. The aim of a parole system was described in Power v. The Queen (1) [1974] HCA 26; (1974) 131 CLR 623, at p 629 as being "to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence". As was observed by the majority in Reg. v. Shrestha (2) [1991] HCA 26; (1991) 173 CLR 48, at p 69, "(t)he mitigation of sentence which the parole system allows is ordinarily directed towards rehabilitation".

19. The parole system in this country varies to a greater or lesser extent from State to State and the differences are reflected in such restrictions upon the fixing of a minimum term as are imposed upon a sentencing judge by the legislation which we have summarized above. While the minimum term is part of the sentence imposed upon an offender, its expiry is the earliest point at which the relevant parole system may come into operation so that it must take into account not only the circumstances of the individual but also the requirements of the particular system designed to effect his rehabilitation.

20. It is, therefore, hardly surprising that, in making use of the existing parole systems in the States, the Commonwealth sought in relation to a federal offender to ensure that any minimum term fixed in relation to him accorded with the minimum term which would have been fixed in relation to a State offender subjected to the same system.

21. Not only that, but a federal offender convicted in a State is required to serve his sentence in a State prison, invariably a prison in the State in which he was convicted (3) But see the Transfer of Prisoners Act 1983 (Cth). That is what was envisaged by s.120 of the Constitution, which provides that every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and that the Parliament of the Commonwealth may make laws to give effect to this provision. It is notorious that the application of different regimes to prisoners serving their sentences in the same prison, particularly in relation to the date of release, is productive of conflict and unrest and is inimical to good prison administration. It is evident that to avoid problems in this respect the Commonwealth Prisoners Act made provision not only for a federal offender to be subjected to a parole system which was the equivalent of that to which a State offender was subjected, but also for a federal offender to receive the same remissions of sentence as a State offender.

22. Under s.77(iii) of the Constitution, the Commonwealth Parliament may make laws investing any court of a State with federal jurisdiction. With certain exceptions, the Parliament has in general terms conferred federal jurisdiction, civil and criminal, upon State courts by s.39(2) of the Judiciary Act. Specific provision is made under s.68 of the Judiciary Act for the exercise of a federal criminal jurisdiction by State courts. Under s.68(2), the courts of a State exercising jurisdiction with respect to, among other things, the trial and conviction on indictment of offenders charged with offences against the laws of the State, are, subject to the section and to s.80 of the Constitution, to have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. Section 68(1) provides, so far as is relevant, that the laws of a State respecting the arrest and custody of offenders or persons charged with offences, and the procedure for their trial and conviction on indictment, shall "subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State ... by this section".

23. In Williams v. The King (No. 2) (4) [1934] HCA 19; (1934) 50 CLR 551, at p 560. Dixon J. said of s.68 that it disclosed a policy "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice". He added that, in his opinion, it was "no objection to the validity of such a provision that the State law adopted varies in the different States" (5) ibid., at p 560; see also Reg. v. Loewenthal; Ex parte Blacklock [1974] HCA 36; [1974] HCA 36; (1974) 131 CLR 338, at p 345; Reg. v. Murphy [1985] HCA 50; (1985) 158 CLR 596, at p 617. Thus the administration of the criminal law of the Commonwealth is organized upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried. And if a person is convicted of a federal offence and sentenced to a term of imprisonment, he will ordinarily serve that term in a State prison in the State in which he is convicted. Prison systems differ significantly from State to State, but that is something which, in relation to federal offenders, is contemplated by s.120 of the Constitution.

24. There is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth. There is, of course, the implication drawn from the federal structure erected by the Constitution that prevents the Commonwealth from legislating in a way which discriminates against the States by imposing special burdens or disabilities upon them or in a way which curtails their capacity to exercise for themselves their constitutional functions (6) See Queensland Electricity Commission v. The Commonwealth [1985] HCA 56; [1985] HCa 56; (1985) 159 CLR 192. There are also specific provisions prohibiting discrimination or preference of one kind or another, but these are confined in their operation. For example, the power of the Commonwealth Parliament to make laws with respect to taxation must be exercised so as not to discriminate between States or parts of States (7).s.51(ii) of the Constitution. Section 92, in requiring trade, commerce and intercourse among the States to be absolutely free, prohibits discrimination of a protectionist kind. Section 99 forbids the Parliament to give preference to one State or any part thereof over another State or any part thereof by any law or regulation of trade, commerce or revenue. And s.117 provides that a subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. The Commonwealth contends that s.117 has no application to it but that is a question which remains to be decided.

25. In Street v. Queensland Bar Association (8) [1989] HCA 53; (1989) 168 CLR 461. various descriptions were given of what would amount to a disability or discrimination (9)ibid., per Brennan J. at pp 505-512, per Gaudron J. at pp 570-574. but these descriptions were for the purpose of examining the application of s.117. Similarly, in Castlemaine Tooheys Ltd. v. South Australia (10)(1990) [1990] HCA 1; 169 CLR 436. the Court gave consideration to what amounted to discrimination in a protectionist sense in the context of s.92. However, there is nothing in those decisions which would support any general implication to be drawn from the Constitution that Commonwealth laws must not be discriminatory or must operate uniformly throughout the Commonwealth.

26. There can be no question, specific restrictions and implications arising from the federal structure apart, that the Commonwealth may give a varying application to its laws by reference to the laws of the States. Section 52(i) of the Constitution gives exclusive power to the Commonwealth to legislate with respect to Commonwealth places. In Worthing v. Rowell and Muston Pty. Ltd. (11) [1970] HCA 19; (1970) 123 CLR 89. Barwick C.J. expressed the view that the Commonwealth Parliament might legislate to fill any void caused by the decision in that case. He said (12)ibid., at p 103; see also Windeyer J. at p 132:

"it can do so referentially and without delay or
difficulty merely by continuing by dint of Commonwealth
law, the terms of State legislation which would be
applicable if the place or places so acquired or for that
matter to be acquired had remained within the legislative
jurisdiction of the State legislature. By suitable words,
amendments of that State law made at any time after
acquisition could also be made operative referentially."

The suggestion made by Barwick C.J. was adopted and finds expression in the Commonwealth Places (Application of Laws) Act 1970 (Cth).

27. The Constitution plainly envisages the continuation of separate State legal systems and, by empowering Parliament under s.77(iii) to invest any court of a State with federal jurisdiction, provides a means whereby the Commonwealth may participate in those systems. In investing State courts with federal jurisdiction, the Commonwealth must take the courts as it finds them, notwithstanding the differences that exist from State to State (13)Le Mesurier v. Connor [1929] HCA 41; (1929) 42 CLR 481; Kotsis v. Kotsis [1970] HCA 61; (1970) 122 CLR 69, at pp 88, 109; The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49, at p 64; Harris v. Caladine [1991] HCA 9; (1991) 172 CLR 84, at pp 92, 109, 117, 138, 158.

28. The Commonwealth Parliament has no specific power to legislate for the creation of federal offences and the treatment of federal offenders. The power which it has in this regard is to be found in its power to legislate with respect to matters incidental to its enumerated powers. Thus the primary source of the power to create those offences of which the plaintiff was convicted is to be found in s.51(i) of the Constitution: the power to make laws with respect to trade and commerce with other countries.

29. It is at least theoretically possible that, in legislating for the treatment of offenders in a particular manner, the Parliament may discriminate against particular offenders or classes of offenders in such a way that the legislation travels beyond matters which are incidental to the main power. The legislation might for that reason be invalid, but that would not be because it offended any implied prohibition against the exercise of legislative power in a discriminatory manner. In the present case, the non-parole period to be served by federal offenders was a matter which was clearly incidental to the main legislative power and the contrary was not suggested. It was for Parliament to determine whether the minimum term to be served was to be fixed by reference to State laws or by some other means.

30. Under s.71 of the Constitution the judicial power of the Commonwealth is 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. In Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (14) [1956] HCA 10; (1956) 94 CLR 254 it was held that ChIII of the Constitution, of which s.71 is the first section, imposes a separation of judicial power from the other powers of government. The judicial power of the Commonwealth is to be exercised by courts constituted or invested with jurisdiction under Ch.III and not otherwise. Nor is it possible to invest a court under Ch.III with non-judicial powers that are not ancillary, but are directed to some non-judicial purpose. But to speak of judicial power in this context is to speak of the function of a court rather than the law which a court is to apply in the exercise of its function. Of course, legislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly (15) See Liyanage v. The Queen [1965] UKPC 1; 1967 1 AC 259. It is upon this principle that bills of attainder may offend against the separation of judicial power (16) See Polyukhovich v. The Commonwealth [1991] HCA 32; (1991) 172 CLR 501. But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function. It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power, but the rules of natural justice are essentially functional or procedural and, as the Privy Council observed in the Boilermakers' Case (17) Attorney-General of the Commonwealth of Australia v. The Queen [1957] HCA 12; (1957) 95 CLR 529, at p 542; (1957) AC 288, at p 317, a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers.

31. In this case, however, the legislation in question did not require a court invested with federal jurisdiction to perform a function which could be described as non-judicial. The sentencing of offenders, including in modern times the fixing of a minimum term of imprisonment, is as clear an example of the exercise of judicial power as is possible.

32. It is obviously desirable that, in the sentencing of offenders, like offenders should be treated in a like manner (18) See Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606, per Mason J. at pp 610-611. But such a principle cannot be expressed in absolute terms. Its application requires the determination of the categories within which equal treatment is to be measured. Its application in Australia is necessarily upon a State by State basis, for it has long been recognized that sentencing practices may not be uniform from State to State but may be affected by local circumstances (19) See Veen v. The Queen [1979] HCA 7; [1979] HCA 7; (1979) 143 CLR 458, per Aickin J. at p 497; Neal v. The Queen [1982] HCA 55; (1982) 149 CLR 305, per Gibbs C.J. at p 309, per Brennan J. at p 323. Of course, with many offences, particularly federal offences, local circumstances may, under State sentencing practices, have no bearing upon the appropriate sentence and it may be proper to have regard to sentences imposed elsewhere in Australia.

33. Even if it is accepted for the purpose of argument that any fundamental departure by the legislature from the principle that like offenders should be treated in a like manner may involve the imposition upon a court of a non-judicial function, it is in our view apparent that to require a court, in the case of a federal offender, to have regard to the sentencing practices of the State in which he is convicted involves no such departure. To require a court to do so does not convert the sentencing process into some process of a non-judicial kind but merely reflects the manner in which the Commonwealth, within the means made available to it by the Constitution, has chosen in the administration of its criminal law to operate through the existing State systems.

34. To say as much is, of course, to take the matter further than we need do. There is no requirement that the actual sentence of a federal offender be fixed having regard to local circumstances. The sentencing judge may, as in this case, have regard to the sentences imposed in other States in order to achieve as far as possible a measure of consistency. The restrictions of which the plaintiff complains relate merely to the fixing of the minimum term which, whilst it is undoubtedly part of the punishment imposed, is also closely linked to the parole system to be applied to the offender and has a bearing upon the administration of the prison in which he must serve his sentence. We can see no departure from the judicial function if a court within our federal system is required, in fixing the minimum term of imprisonment of a federal offender, to have regard to those matters to which it would have regard if the law of the State in which the offender was convicted were applicable.

35. We would answer both questions in the negative.

BRENNAN J. It is the duty of an Executive Government to carry a judicial sentence of imprisonment into execution. That duty may be affected by an exercise of the prerogative of mercy and it may be qualified by laws authorizing the Executive Government to release a prisoner from custody at a time earlier than the expiration of his sentence. Section 5 of the Commonwealth Prisoners Act 1967 (Cth) is such a law. The relevant sub-sections of s.5 read as follows:

"(1) Subject to this section, the Governor-General may,
in his discretion, by order in writing, direct that a
person, being a person who is serving a term of
imprisonment for an offence against a law of the
Commonwealth in respect of which a minimum term of
imprisonment has been fixed, be released from prison on
parole at a time specified in the order, being a time
that is after the expiration of that minimum term of
imprisonment.
(2) An order under the last preceding sub-section in
relation to a person is sufficient authority for the
release of the person from prison.
(3) Where -
(a) a court fixes a minimum term of imprisonment in
respect of an offence committed by a person
against a law of the Commonwealth; and
(b) at the time when that minimum term of imprisonment
expires the person is under sentence for another
offence, whether he has commenced to serve that
other sentence or not,
a parole order shall not specify a date for his release
that is a date before he has served the minimum term of
imprisonment fixed in respect of that other offence, or,
if no minimum term of imprisonment is fixed in respect
of that other offence, that is before he has served the
term of imprisonment in respect of that other offence."

The condition upon which the operation of these provisions depends is that the prisoner "is serving a term of imprisonment ... in respect of which a minimum term of imprisonment has been fixed". Section 3 of the Commonwealth Prisoners Act defines "minimum term of imprisonment" to mean "that part of a term of imprisonment to which a person has been sentenced by a court that is fixed by the court as the period during which the person is not eligible to be released on parole". The fixing of a minimum term of imprisonment has become a familiar part of the sentencing process (20) Reg. v. Shrestha [1991] HCA 26; (1991) 173 CLR 48, at pp 61, 68-69, but the legal effect of a court's fixing of a minimum term is to enliven an executive power to release on parole a prisoner who would otherwise be required to serve the head sentence, adjusted for statutory reductions and remissions. The minimum term determines the date on which a prisoner, who is serving a head sentence, becomes eligible for parole. To prisoners and to prison administrators, the minimum term is of great practical significance because the executive power to release is usually exercised when the minimum term has expired. In a prison in which different classes of prisoners are incarcerated, a disparity in regimes governing the fixing of minimum terms for the several classes would be a source of continuing disturbance and, perhaps, of some administrative confusion. That is a problem which s.4 of the Commonwealth Prisoners Act and s.30(1) of the Crimes Legislation Amendment Act (No. 2) 1989 (Cth) (No. 4 of 1990) seek to address.

2. To examine the constitutional validity of these provisions, it is necessary to place them in the context of the law affecting the sentencing and custody of Commonwealth prisoners, that is to say, offenders against laws of the Commonwealth who are sentenced to a term of imprisonment.

3. A general jurisdiction to try and to sentence an offender against the laws of the Commonwealth is vested by s.68(2) of the Judiciary Act 1903 (Cth) in the several courts of the States and Territories which have jurisdiction to try offenders against the laws of the relevant State or Territory. In addition to the jurisdiction vested in those courts, particular laws of the Commonwealth vest a like jurisdiction to sentence offenders against those laws in federal courts. Thus, a custodial sentence may be imposed on an offender against a law of the Commonwealth by a judge of a State or Territory court or by a judge of a federal court sitting in a State or Territory.

4. Section 4 of the Commonwealth Prisoners Act then assimilates the function of a judge who fixes a minimum term in exercise of a court's jurisdiction to sentence a Commonwealth prisoner to the function of a judge who fixes a minimum term in exercise of a court's jurisdiction to sentence a person for an offence against a State or Territory law. The relevant provisions of s.4 read as follows:

"(1) Where a federal court or a court of a State or
Territory sentences a federal offender to a term of
imprisonment -
(a) if, under the law of the State or Territory where the
offender is convicted, a court of the State or
Territory is required (or is required except in
specified circumstances), when sentencing a State
offender or a Territory offender to a like term of
imprisonment, to fix a lesser term of imprisonment
during which the State offender or Territory
offender is not to be eligible to be released on
parole - the court shall fix (or shall, unless the
like circumstances exist, fix) a lesser term of
imprisonment during which the federal offender is
not to be eligible to be released on parole; or
(b) if, under the law of the State or Territory where the
offender is convicted, a court of the State or
Territory is permitted, when sentencing a State
offender or a Territory offender to a like term of
imprisonment, to fix a lesser term of imprisonment
during which the State offender or Territory
offender is not to be eligible to be released on
parole - the court may fix a lesser term of
imprisonment during which the federal offender is
not to be eligible to be released on parole.
(2) In fixing a lesser term of imprisonment in pursuance
of the last preceding sub-section, the court shall have
regard to the matters to which it would have regard if
the law of the State or Territory in which the offender
was convicted were applicable."

The first question which has been reserved for consideration by a Full Court of this Court is: "Was section 4(1) of the Commonwealth Prisoners Act 1967 prior to its repeal an invalid law of the Commonwealth in so far as it applied to sentences for offences under section 233B of the Customs Act 1901 (Cth)?"

5. The Commonwealth Prisoners Act was repealed by s.29 of the Crimes Legislation Amendment Act (No. 2) but a transitional provision was inserted by s.30 of that Act, sub-s.(1) of which reads as follows:

" Where:
(a) a person was sentenced before the commencing day to a
term of imprisonment for a federal offence; and
(b) a court had fixed or purported to fix a lesser term of
imprisonment under section 4 of the Commonwealth
Prisoners Act 1967 as the period during which the
person is not eligible to be released on parole; and
(c) on that day, that lesser period of imprisonment had not
been served or, if it had been served, the person's
release on parole had been deferred for whatever
reason;
that lesser term is to be treated, on and after that
day, for all purposes of the Principal Act as amended by
this Act, as if it were a non-parole period that had
been duly fixed in respect of that sentence under
Division 4 of the Principal Act as so amended."

The second question reserved is: "Is section 30(1) of the Crimes Legislation Amendment Act (No.2) 1989 an invalid law of the Commonwealth in so far as it applies to an order made or purported to be made under section 4(1) of the Commonwealth Prisoners Act 1967 in respect of certain orders" made by the Court of Criminal Appeal of Queensland in varying a sentence imposed on the plaintiff and described in par.3 of the facts recited in the order reserving the questions for the consideration of a Full Court of this Court. The answer to this question will follow the answer to the first question. It is therefore convenient first to determine whether s.4(1) of the Commonwealth Prisoners Act was a valid law of the Commonwealth. The following discussion will be expressed as though the Commonwealth Prisoners Act had not been repealed.

6. The plaintiff challenges the constitutional validity of s.4(1) of the Commonwealth Prisoners Act because, in substance, it imports into federal law different regimes for the fixing of minimum terms of imprisonment of Commonwealth prisoners, the applicable regime in each case depending on the State or Territory in which the sentence is imposed. The States and Territories have enacted laws which make significantly different provision for the fixing of minimum terms as part of their respective regimes for releasing prisoners on parole. The discrimination among Commonwealth prisoners imported by s.4 of the Commonwealth Prisoners Act is not necessarily founded on the locality where the offence or an element of the offence has been committed. Although s.80 of the Constitution directs that a trial on indictment shall take place in the State in which the relevant Commonwealth offence occurred, there are many Commonwealth offences which are not indictable or which do not occur in a State and some (for example, conspiracy) which may not occur in Australia. Of course, s.80 of the Constitution also provides that a trial on indictment for an offence not committed within a State may take place wherever the Parliament directs, and s.70 of the Judiciary Act directs that an offender against a law of the Commonwealth be tried and punished in the State or part of Australia in which the offence was begun or completed. In the residue of cases not covered by s.80 of the Constitution or s.70 of the Judiciary Act, s.70A of the Judiciary Act in effect gives the prosecuting authorities a discretion as to the place where a trial on indictment will be held. Assuming the validity of s.70A (for its validity was not challenged), it is possible that the regime under which a minimum term is fixed for a Commonwealth prisoner to whom that section applies would be determined by an exercise of a prosecutorial discretion as to venue. The plaintiff submits that the possible application of s.70A illustrates how s.4(1) of the Commonwealth Prisoners Act can work an impermissible discrimination among Commonwealth prisoners, exposing some to more punitive regimes than the regimes applicable to others.

7. If the plaintiff's arguments were directed against a law prescribing different maximum penalties for the same offence, there would be much force in them. The maximum penalties prescribed for offences determine the extent of the judicial power to send an offender to prison and the corresponding liability of an offender to be sent to prison. It would be offensive to the constitutional unity of the Australian people "in one indissoluble Federal Commonwealth", recited in the first preamble to the Commonwealth of Australia Constitution Act 1900, to expose offenders against the same law of the Commonwealth to different maximum penalties dependent on the locality of the court by which the offender is convicted and sentenced. It follows that the maximum penalty prescribed for a breach of the law must be the same irrespective of the locality of the court before which the offender is tried and sentenced. On the other hand, where an offence against a law of the Commonwealth is defined to contain an element of locality within Australia, an offence against that law will attract a penalty for conduct that may not attract a penalty, or may not attract so severe a penalty, if committed outside the locality. Such a law, which discriminates between conduct in one part of Australia and like conduct in another part must find support in the power under which the law is purportedly enacted (21) See Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; [1982] HCA 31; (1982) 152 CLR 25, at p 93; Queensland Electricity Commission v. The Commonwealth [1985] HCa 56; (1985) 159 CLR 192, at pp 208,219-220,233-235,238,247-248,260. The offences created by s.233B(1) of the Customs Act contain no element of locality within Australia. Nor does s.235 of the Customs Act, which prescribes the penalties for the offences created by s.233B(1), provide for different maximum penalties according to the locality of the offence or the locality in which an offender is sentenced. Those provisions apply and are to be applied uniformly in all parts of Australia. Perhaps it should be added that the sentencing discretion to be exercised under those and other laws of general application need not lead to the imposition of uniform sentences in all parts of Australia. It is of the nature of the judicial power to sentence that its exercise is governed by the circumstances of each case unless statute eliminates the sentencing discretion. The exercise of the sentencing discretion is affected by the particular factors relevant to the instant case and the instant offender. Those factors may vary from locality to locality: for example, an offence may be prevalent in one locality and rare in another, and sentences in those localities for offences of the same kind and seriousness may properly reflect those factors. The sentencing principles are uniform, but their application may require weight to be given to local factors. Where there are no local factors to be taken into account, a broad consistency is to be expected in the sentences imposed for like conduct committed in breach of the same law.

8. Section 4 of the Commonwealth Prisoners Act, however, does not relate to the exercise of the judicial power to send an offender to prison; nor does it relate to the reduction or remission of sentences. It relates to the exercise of the executive power to release Commonwealth prisoners from the prisons to which they are respectively sent, which is quite a different thing (22) See Reg. v. Paivinen [1985] HCA 39; (1985) 158 CLR 489, at p 497. The selection of a prison in which a prisoner is to be committed is usually regulated, in modern times, by statute (23) See, for example, the discussion in Day v. The Queen [1984] HCA 3; [1984] HCA 3; (1984) 153 CLR 475 and Powch v. The Queen [1987] HCA 41; (1987) 163 CLR 496. In the case of Commonwealth prisoners sentenced by State or Territory courts, the State or Territory prisons to which State or Territory prisoners are sent will be the prisons to which Commonwealth prisoners are sent. That is because s.68(1) of the Judiciary Act provides that the laws of a State or Territory respecting the custody of offenders apply and are to be applied so far as they are applicable to Commonwealth prisoners in respect of whom jurisdiction is conferred on the several courts of that State or Territory by that section. When a State or Territory court imposes a custodial sentence on a prisoner, whether a Commonwealth prisoner or a State or Territory prisoner, that prisoner will be incarcerated in a prison in that State or Territory unless removed therefrom under specific statutory authority. The principle that an offender be committed to the common gaol of the county in which the committing court sits is of ancient origin (24) 2 Hawk PC, Ch 16, s.8(c). and a prohibition on extraterritorial incarceration was enacted by 31 Car 2 c.2, XII (25) ibid., s.5. Consistently with that principle and that statute, Barwick C.J. referred in Reg. v. Turnbull; Ex parte Taylor (26) [1968] HCA 88; (1968) 123 CLR 28, at p 33. to "the well understood common law position that a prisoner may not be removed from the territorial jurisdiction within which and by whose courts he was convicted and sentenced, without special authority, to be derived, in general, from some legislative provision".

9. In the absence of Commonwealth prisons, the prison in which a Commonwealth prisoner sentenced to a term of imprisonment by a court of a State or Territory must serve his sentence is a prison of that State or Territory (27) Reg. v. Turnbull; Ex parte Taylor, unless the prisoner is removed under specific statutory authority. Section 120 of the Constitution requires every State to make provision for the detention of Commonwealth prisoners in its prisons and for any other punishment (28)(28) See the Convention Debates, Melbourne 1898, vol.1, pp 692-693. imposed on Commonwealth prisoners. State prisons also receive Commonwealth prisoners who are sentenced by federal courts in that State. I am unaware of any statutory provisions specifying the prisons in which Commonwealth prisoners sentenced to custodial punishment by federal courts are incarcerated but, in the absence of Commonwealth prisons, there seems to be no justification at common law (29) See s.80 of the Judiciary Act as to the application of the common law. for the issue of a warrant of commitment of a Commonwealth prisoner to a prison outside the State or Territory in which the federal court is sitting. In Turnbull, it was held that a prisoner sentenced by a court in the Australian Capital Territory could not be lawfully removed to the Goulburn penitentiary in New South Wales except pursuant to a warrant issued in strict compliance with the Removal of Prisoners (Territories) Act 1923 (Cth).

10. To allow for the transfer of a Commonwealth prisoner to a prison outside the State or Territory in which the sentence was imposed, it was necessary to enact the Removal of Prisoners (Territories) Act, the Removal of Prisoners (Australian Capital Territory) Act 1968 (Cth) and the Transfer of Prisoners Act 1983 (Cth). Unless a Commonwealth prisoner is transferred pursuant to an order made under one or other of those Acts, a Commonwealth prisoner who is sentenced to a term of imprisonment by a State or Territory court or by a federal court sitting in a State or Territory must serve his sentence in a prison of that State or Territory. Therefore Commonwealth prisoners and prisoners serving terms of imprisonment under State or Territory laws may be, and usually are, incarcerated in the same prison.

11. When ss.4 and 5 of the Commonwealth Prisoners Act were enacted, the Removal of Prisoners (Territories) Act prescribed the conditions on which a Commonwealth prisoner sentenced by a Territory court might be removed to a State prison and there detained to serve his sentence, but there was no provision for the transfer of a Commonwealth prisoner who was serving his sentence in a State prison to a prison in another State or Territory. Now, in addition to the Removal of Prisoners (Australian Capital Territory) Act, the Transfer of Prisoners Act authorizes the Commonwealth Attorney-General, in the circumstances mentioned in that Act, to make an order for the transfer of a Commonwealth prisoner from one State or Territory to another and provision is made to maintain the minimum term fixed in respect of that prisoner: s.19. Apart from those cases in which an order for transfer is made, the effect of s.4 of the Commonwealth Prisoners Act is that a Commonwealth prisoner serving his sentence in a State or Territory prison will have had his minimum term fixed pursuant to the law governing the fixing of the minimum terms of State or Territory prisoners in the same prison.

12. With this background, it is easy to perceive the purpose of s.4 of the Commonwealth Prisoners Act. Its purpose is to ensure that there is no difference between the regimes governing the release on parole of Commonwealth prisoners serving their sentences in a State or Territory prison and State or Territory prisoners serving their sentences in the same prison. If there were any doubt as to this purpose, it is removed by s.19 of the Commonwealth Prisoners Act which provides for the reduction or remission of minimum terms of imprisonment of Commonwealth prisoners to the same extent as State or Territory prisoners. That provision is carried forward by s.33 of the Crimes Legislation Amendment Act (No. 2).

13. Section 4 of the Commonwealth Prisoners Act does not discriminate among offenders against laws of the Commonwealth in respect of the maximum penalties to which they are exposed; it discriminates among Commonwealth prisoners in respect of the determination of the condition limiting the executive power to release them on parole. So long as the system, contemplated by s.120 of the Constitution, of incarcerating Commonwealth prisoners in the same prisons as State prisoners continues, it will be necessary to maintain the same or substantially the same regime for fixing the minimum terms of Commonwealth prisoners and State prisoners serving their sentences in the same prison. Although s.4 of the Commonwealth Prisoners Act discriminates among Commonwealth prisoners serving sentences for the same kind of offence, the practical ground of distinction is their incarceration in prisons shared with State and Territory prisoners. That is not only a rational ground of discrimination; it is a necessary ground. To aggregate as a class all Commonwealth prisoners who have been convicted of the same kind of offence by courts in different parts of Australia and, by reference to that overall classification, to find an impermissible discrimination among them is to mistake the classification relevant to the operation of s.4 of the Commonwealth Prisoners Act. Given the desirability of maintaining the same regime for fixing minimum terms to be served by all prisoners in a State or Territory prison before becoming eligible for parole, the relevant classification is Commonwealth prisoners who are serving their custodial sentences in the prisons of the respective States and Territories. As among the members of those respective classes of Commonwealth prisoners, s.4 of the Commonwealth Prisoners Act works no discrimination. Each of them acquires eligibility for parole under the same laws. If it were otherwise, the system contemplated by s.120 of the Constitution would be impracticable.

14. The legislative power to enact ss.4 and 5 of the Commonwealth Prisoners Act is an aspect of a power to create offences and to prescribe penalties for their commission and the means by which those penalties should be borne and discharged. That legislative power is to be found in the respective heads of power under which offences against the laws of the Commonwealth can be created. Sections 4 and 5 of the Commonwealth Prisoners Act are appropriate means by which the regime governing custodial sentences can be implemented. Section 4 exhibits no incompatibility with the vesting of judicial power to be exercised in passing a sentence which fixes a minimum term. Once it is appreciated that ss.4 and 5 relate to the regime for releasing on parole Commonwealth prisoners who will serve their sentences in the prisons of the State and Territory in which the Court is sitting (except in those cases where a transfer order may be made under one or other of the special Acts), the differences in the State and Territory laws to be applied to Commonwealth prisoners are seen as no more than the inevitable consequence of the constitutionally sanctioned expedient of incarcerating in the same prisons offenders against laws made under federal powers and offenders against State laws. Discriminatory laws made under a constitutional head of power, where the discrimination is supported by the power, must be administered by the courts in which the judicial power of the Commonwealth is vested. The administration of such laws is consistent with a proper exercise of the judicial power; indeed, a court in which the relevant jurisdiction is vested is bound to exercise its jurisdiction in accordance with such laws.

15. In my opinion, s.4(1) of the Commonwealth Prisoners Act is valid. It follows that s.30(1) of the Crimes Legislation Amendment Act (No.2) is also valid. I would answer the questions reserved for the consideration of this Court as follows:

Question (a) : Was section 4(1) of the Commonwealth Prisoners
Act 1967 (Cth) prior to its repeal an
invalid law of the Commonwealth in so
far as it applied to sentences for
offences under section 233B of the
Customs Act 1901 (Cth)?
Answer : No.
Question (b) : Is section 30(1) of the Crimes Legislation
Amendment Act (No. 2) 1989 (Cth) an
invalid law of the Commonwealth in so
far as it applies to an order made or
purported to be made under section 4(1)
of the Commonwealth Prisoners Act 1967
(Cth) in respect of the orders referred
to in paragraph 3?
Answer : No.

DEANE AND TOOHEY JJ. The plaintiff pleaded guilty in the Supreme Court of Queensland to three counts of offences under s.233B of the Customs Act 1901 (Cth). The terms of imprisonment with hard labour to which he was sentenced for those three offences were concurrent and resulted in a head sentence of twenty-five years with a recommendation that he not be considered for parole until he had served fourteen years. Subsequently, the Queensland Court of Criminal Appeal confirmed the head sentence but reduced the recommended non-parole period to twelve and one-half years. It is common ground that the non-parole period was purportedly fixed by both the sentencing judge and the Court of Criminal Appeal pursuant to the provisions of s.4(1) of the Commonwealth Prisoners Act 1967 (Cth) ("the Act"). In these proceedings, the plaintiff challenges the validity of the recommendation of a non-parole period on the ground that s.4(1) of the Act was invalid. After the imposition of the plaintiff's sentence and the reduction of the non-parole period on appeal, the Act was repealed (30) See Crimes Legislation Amendment Act (No. 2) 1989 (Cth) (Act No. 4 of 1990) which received the royal assent on 17 January 1990 and commenced on 18 July 1990. The repealing legislation provided, however, that unexpired non-parole periods fixed under the Act should be treated as having been fixed under a new Commonwealth legislative scheme with respect to non-parole periods which was introduced into the Crimes Act 1914 (Cth) and which remains in operation (31) ibid., s.30. See, generally, Reg. v. Shrestha [1991] HCA 26; (1991) 173 CLR 48.

2. At the time when the plaintiff was sentenced at first instance and at the time when the non-parole period was varied by the Court of Criminal Appeal, s.4(1) of the Act read:

"Where a federal court or a court of a State or Territory
sentences a federal offender to a term of imprisonment -
(a) if, under the law of the State or Territory where the offender
is convicted, a court of the State or Territory is required (or
is required except in specified circumstances), when sentencing
a State offender or a Territory offender to a like term of
imprisonment, to fix a lesser term of imprisonment during which
the State offender or Territory offender is not to be eligible
to be released on parole - the court shall fix (or shall, unless
the like circumstances exist, fix) a lesser term of imprisonment
during which the federal offender is not to be eligible to be
released on parole; or
(b) if, under the law of the State or Territory where the offender
is convicted, a court of the State or Territory is permitted,
when sentencing a State offender or a Territory offender to a
like term of imprisonment, to fix a lesser term of imprisonment
during which the State offender or Territory offender is not to
be eligible to be released on parole - the court may fix a
lesser term of imprisonment during which the federal offender is
not to be eligible to be released on parole."

Section 3 of the Act defined "Territory" as meaning an internal Territory and the terms "federal offender", "State offender" and "Territory offender" as respectively meaning a person convicted of an offence against a law of the Commonwealth, a State or a Territory. Section 4(2) provided that, in fixing a lesser term of imprisonment in pursuance of s.4(1), "the court shall have regard to the matters to which it would have regard if the law of the State or Territory in which the offender was convicted were applicable". Section 5 of the Act contained provisions authorizing the Governor-General, in a case where a non-parole period had been fixed, to direct the release on parole of a prisoner after the expiry of that period.

3. At relevant times, there was legislation in each of the States and internal Territories of the Commonwealth which either required or permitted the fixing of a non-parole period in the case of a person convicted of an offence against a law of the relevant State or Territory. The provisions of such legislation varied greatly. The point can be demonstrated by reference to a case where the sentence of imprisonment imposed was more than three years. In such a case, the New South Wales legislation prima facie (32) Subject to a discretion in the court to specify a shorter period: Probation and Parole Act 1983 (N.S.W.), s.21(3) required that for a "serious offence" (being one of those listed in a schedule) the non-parole period be at least three-quarters of the head sentence (33) s.20A(2); the Tasmanian legislation required that it be at least half (34) Parole Act 1975 (Tas.), ss.12A(1), 12B; the South Australian legislation designated no minimum or maximum non-parole period (35) See Criminal Law (Sentencing) Act 1988 (S.A.), s.32; the Victorian legislation designated a maximum but no minimum period (36) See Penalties and Sentences Act 1985 (Vict.), s.17(1): "at least six months less than the term of the sentence"; and the Western Australian legislation stipulated a mandatory proportion of the head sentence (37) See Offenders Probation and Parole Act 1963 (W.A.), s.37A: one-third of a sentence of six years or less; two years less than two-thirds of a sentence of more than six years. In Queensland, the Corrective Services Act 1988 (Q.), whose provisions were effectively applied in the present case pursuant to s.4(1) and (2) of the Act, conferred a general discretion on the court to recommend a period after which a person should be eligible for parole (38) s.166(3). In the absence of such a recommendation, s.166(1) designated at least half of the head sentence. As to the internal Territories, see Parole of Prisoners Act 1971 (N.T.), s.4 and Parole Act 1976 (A.C.T.), s.7 (in both cases, no minimum or maximum non-parole period and no non-parole period at all where the sentence is imprisonment for life).

4. It can therefore be seen that the effect of s.4(1) and (2) of the Act was that the legislative rules by reference to which a court was required to determine or recommend the minimum term of imprisonment after which a federal offender would be eligible to be considered for release on parole varied greatly according to the place in the Commonwealth where the offender was convicted. If, for example, different persons were sentenced in New South Wales, Western Australia and South Australia to imprisonment for six years for identical serious offences against the same law of the Commonwealth, the non-parole period of the person convicted in New South Wales would have been not less than four and one-half years, that of the person convicted in Western Australia would have been two years and that of the person convicted in South Australia could have been more or less than either of those two periods. In most cases, the State or Territory in which an offender was convicted would be that in which the offence was committed (39) See Constitution, s.80; Judiciary Act 1903 (Cth), s.68. In some cases, however, the decision about where an offender would be tried effectively lay in the discretion of the prosecution (40) Judiciary Act, ss.70, 70A. In those cases, the effect of s.4(1) was that it lay within the discretion of that limb of the Executive Government to determine on an ad hoc basis where the proceedings should be brought and (as a consequence) whether harsher or more lenient parole laws should apply.

5. It was common ground between the parties that the present case should be approached on the basis that the provisions of s.4(1) were enacted by the Parliament in purported exercise of a combination of the legislative powers conferred by s.51 of the Constitution. In so far as the application of s.4(1) to offences under the Customs Act is concerned, the relevant grants of legislative power were identified as being sub-s.(i) ("Trade and commerce with other countries ...") and (if necessary) sub-s.(xxxix) ("Matters incidental ...") of that section. The plaintiff rightly does not contend that, as a matter of ordinary language, those grants of legislative power are inadequate to support the provisions of s.4(1) in their application to those offences. The argument advanced on his behalf is that the grants of legislative power contained in s.51 must be read in the context of the Constitution as a whole and are subject to two relevant restrictions or reservations. The first is a restriction or reservation resulting from an implication of the equality of the people of the Commonwealth in the sense "that, generally speaking, laws of the Commonwealth are laws which are not to single out individuals, ... States or ... anyone, unless it be that the nature of the legislative power is such that it permits that to happen". The second is the restriction or reservation of Commonwealth legislative powers resulting from Ch.III of the Constitution. Section 4(1) of the Act falls, the plaintiff submits, within the area of each of those restrictions or reservations.

6. The grants of Commonwealth legislative power contained in s.51 of the Constitution are expressly made "subject to" the Constitution. They are confined by a variety of overriding express guarantees and prohibitions. Their prima facie content is also confined by a general principle of construction that they should not be interpreted as authorizing the infringement of a number of implications to be drawn either from the Constitution as a whole or from some one or more of its particular provisions. Thus, it is now well settled that there is to be deduced from the nature of the federal system which the Constitution establishes, including the assumption of the continued existence of the States as viable political entities, an implied confinement or restriction of the grants of Commonwealth legislative power contained in s.51 which, except to the extent that the nature of a specific power otherwise indicates, precludes the enactment by the Parliament of laws which discriminate against the States by subjecting them or their instrumentalities to special burdens or disabilities (41) See, generally, Queensland Electricity Commission v. The Commonwealth [1985] HCa 56; (1985) 159 CLR 192, at pp 205-206, 212-217, 225-227, 231-236, 245-247, 258-261. That implied confinement or restriction operates to preclude discriminatory treatment either of the States or their instrumentalities generally or of a particular State or State instrumentality (42) See ibid., at pp 207, 217, 222, 235-236, 247, 260.

7. The States themselves are, of course, artificial entities. The parties to the compact which is the Constitution were the people of the federating Colonies (43) See the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp.); and, for the history of the Constitutional Referenda, Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), pp 206-213, 221-226, 249-250. It is the people who, in a basic sense, now constitute the individual States just as, in the aggregate and with the people of the Territories, they constitute the Commonwealth. The implied confinement or restriction of Commonwealth legislative powers to preclude the singling out of the States and their instrumentalities for discriminatory treatment has, however, been uniformly defined in terms which protect only the artificial entities or organs of government rather than the constituent people. Any constitutional protection of the people themselves from arbitrary or discriminatory treatment must be found, if at all, in other express or implied doctrines or provisions. Nonetheless, the implication which protects the States and their instrumentalities is relevant for present purposes for two reasons. First, it would be somewhat surprising if the Constitution, which is concerned with matters of substance, embodied a general principle which protected the States and their instrumentalities from being singled out by Commonwealth laws for discriminatory treatment but provided no similar protection of the people who constitute the Commonwealth and the States. Second, the Constitution's adoption, by implication rather than express statement, of the general principle protecting the States and their instrumentalities from discriminatory treatment illustrates the general approach of the framers of the Constitution to the underlying doctrines or principles upon which it is structured. That approach was to incorporate underlying doctrines or principles by implication drawn both from the nature of the Federation and from any particular express provisions of the Constitution which reflect or implement those doctrines or principles. In the context of that approach, specific provisions of the Constitution which reflect or implement some underlying doctrine or principle are properly to be seen as a manifestation of it and not as a basis for denying its existence by invoking the inappropriate rule of expressio unius (44) See per Stephen, Mason, Aickin, Wilson and Brennan JJ., Houssein v. Under Secretary of Industrial Relations and Technology (N.S.W.) [1982] HCA 2; (1982) 148 CLR 88, at p 94. And note the many statements in the Convention Debates by the opponents of express guarantees of fundamental rights to the effect that such guarantees were "unnecessary" (see, e.g., Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1898, vol.1, pp 667, 687, 688) or dealt with matters which were covered by "the true spirit of federation ... infused into this Constitution" (ibid., p 679) or were effected by "the ordinary operation of the common law" and "embodied in the Constitution as a part of the unwritten law" (ibid., vol.2, p 1776). Thus, the specific provisions of the Constitution preserving and protecting the Constitutions (45) Constitution, s.106, powers (46)(46) s.107, laws (47) s.108. and territory (48) s.123. of the States do not preclude the implication of a more general principle protecting their continued existence and political viability. Again, the Constitution contains no detailed statement of the content or implications of the doctrine of the separation of judicial power from executive and legislative powers which it implements by expressly vesting the judicial power of the Commonwealth in Ch.III courts (49) s.71, the legislative power of the Commonwealth in the Parliament (50) s.51. and the executive power of the Commonwealth in the Crown (51) s.61. The adoption of that doctrine of the common law (52) See, e.g., Blackstone, Commentaries, 17th ed. (1830), vol.1, p 269; Story, Commentaries on the Constitution of the United States, 5th ed. (1891), Ch 7 as part of the very structure of the Constitution is, however, apparent. Reference must, for example, be made to it and its historical content to understand what is involved in the "judicial power of the Commonwealth" (53) See, e.g., Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353, at pp 366-369, 380-382.

8. In The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley (54) [1926] HCA 8; (1926) 37 CLR 393, at pp 411-412, Isaacs J. pointed out "that it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicial notice, in interpreting the Australian Constitution, of every fundamental constitutional doctrine existing and fully recognized at the time the Constitution was passed". The doctrine of legal equality is in the forefront of those doctrines. It has two distinct but related aspects. The first is the subjection of all persons to the law: "every man, whatever be his rank or condition, is subject to the ordinary law ... and amenable to the jurisdiction of the ordinary tribunals" (55) Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (1959), p 193. The second involves the underlying or inherent theoretical equality of all persons under the law and before the courts (56) See, e.g., Holdsworth, A History of English Law, (1938), vol 10, p 649. The common law may discriminate between individuals by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of conduct which it proscribes, punishes or penalizes. It may have failed adequately to acknowledge or address the fact that, in some circumstances, theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality. Nonetheless, and putting to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government. Conformably with its ordinary approach to fundamental principles, the Constitution does not spell out that general doctrine of legal equality in express words. The question arises whether it adopts it as a matter of necessary implication. In our view, several considerations combine to dictate an affirmative answer to that question.

9. For one thing, there is the conceptual basis of the Constitution. As the preamble and s.3 of the Commonwealth of Australia Constitution Act 1900 (Imp.) (57) 63 and 64 Vict. c.12. make plain, that conceptual basis was the free agreement of "the people" - all the people - of the federating Colonies to unite in the Commonwealth under the Constitution. Implicit in that free agreement was the notion of the inherent equality of the people as the parties to the compact. Indeed, covering cl.5 (58) s.5. expressly enacted the first aspect of the common law doctrine of legal equality, namely, that "(t)his Act" - which included the actual terms of the Constitution (59) s.9. - "and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people ... of every part of the Commonwealth".

10. For another thing, the doctrine of legal equality is, to a significant extent, implicit in the Constitution's separation of judicial power from legislative and executive powers and the vesting of judicial power in designated "courts". Chapter III of the Constitution "is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with its provisions" (60) per Dixon C.J., McTiernan, Fullagar and Kitto JJ., Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, at p 270. Those provisions not only identify the possible repositories of Commonwealth judicial power. They also dictate and control the manner of its exercise. They are not concerned with mere labels or superficialities. They are concerned with matters of substance. Thus, in Ch.III's exclusive vesting of the judicial power of the Commonwealth in the "courts" which it designates, there is implicit a requirement that those "courts" exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially. At the heart of that obligation is the duty of a court to extend to the parties before it equal justice, that is to say, to treat them fairly and impartially as equals before the law and to refrain from discrimination on irrelevant or irrational grounds.

11. Finally, once it is appreciated that it is the ordinary approach of the Constitution not to spell out the fundamental common law principles upon which it is structured, the existence of a number of specific provisions which reflect the doctrine of legal equality serves to make manifest rather than undermine the status of that doctrine as an underlying principle of the Constitution as a whole. Among those specific provisions are: the guarantee against discrimination between persons in different parts of the country in relation to customs and excise duties (61) Constitution, ss.86, 88, 90, other Commonwealth taxes (62) s.51(ii) and bounties (63) ss.51(iii), 86, 90; the guarantee that the Commonwealth shall not, by any law or regulation of trade, commerce or revenue, give preference to one State or any part thereof over another State or part thereof (64) s.99; the guarantee of freedom of interstate trade, commerce and intercourse (65) s.92; the guarantee of direct suffrage and equality of voting rights among those qualified to vote (66) ss.24, 25. the guarantee that no religious test shall be required as a qualification for any office or public trust under the Commonwealth (67) s.116.

12. The other provision of the Constitution to which specific reference should be made in this regard is the command of s.117 that "(a) subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State." Initially, it was assumed by text writers (68) See, e.g., Quick and Garran, op.cit., p 960; Moore, The Constitution of the Commonwealth of Australia, 2nd ed. (1910), pp 331-334. and in some judgments in this Court (69) See, e.g., Davies and Jones v. The State of Western Australia [1904] HCA 46; (1904) 2 CLR 29, at pp 38-39, 47; Baxter v. Commissioners of Taxation (N.S.W.) [1907] HCA 76; (1907) 4 CLR 1087, at p 1128 but cf. R. v. Barger [1908] HCA 43; (1908) 6 CLR 41, at p 114. that the injunction of s.117 of the Constitution related only to State laws and actions. The drafting history of the section (70) See Quick and Garran, op.cit., pp 953-954; Street v. Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, at pp 51-553. lends some support for that view. It is also arguable that that view is supported by the fact that the section appears in ChV of the Constitution, which is headed "The States". The immediately preceding provisions of s.116 which are directed exclusively to the Commonwealth and which are also in Ch.V demonstrate, however, what little significance can be given to the heading to Ch.V in construing s.117. The main strength of the argument that the immunity of s.117 applies only in respect of State laws and actions lies in the fact that its terms, which are confined to discrimination or disability on a State-based comparison, are more obviously appropriate for application to State laws or actions than to the laws or governmental actions of the Commonwealth (71) cf., e.g., the references to "parts of States" in s.51(ii) and "any part thereof" in s.99 and see, generally, the discussion in Moore, op.cit., pp 332-333. On the other hand, the section is plainly capable of being applied to laws or actions of the Commonwealth and there is some support for this in more recent judgments in this Court (72) See Henry v. Boehm [1973] HCA 32; [1973] HCA 32; (1973) 128 CLR 482, at p 495; Koowarta v. Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, at pp 213, 250; Street v. Queensland Bar Association (1989) 168 CLR, at pp 486, 503-504. The question whether the injunction of s.117 is directed to the Commonwealth as well as the States was not, however, fully canvassed in argument and it is unnecessary to determine it for the purpose of resolving the present case. It suffices for present purposes to say that, clearly enough, the section was primarily directed to the States. That being so, its presence in the Constitution specifically to prohibit discrimination in one State against a citizen resident in another State does not militate against the conclusion that there is to be discerned in the Constitution as a whole an assumption of the fundamental common law doctrine of legal equality which operates to confine the prima facie scope of the legislative powers which the Constitution vests in the Commonwealth. As Toohey J. commented in Street v. Queensland Bar Association (73) (1989) 168 CLR, at p 554, "there is nothing to suggest that s.117 represented any compromise of the principle that Australia was to be a commonwealth in which the law was to apply equally to all its citizens".

13. The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. In one sense, almost all laws discriminate against some people since almost all laws operate to punish, penalize or advantage some, but not all, persons by reference to whether their commands are breached or observed. While such laws discriminate against those whom they punish or penalize or do not advantage, they do not infringe the doctrine of the equality of all persons under the law and before the courts. To the contrary, they assume that underlying legal equality in that they discriminate by reference to relevant differences. Again, laws which distinguish between the different needs or responsibilities of different people or different localities may necessarily be directed to some, but not all, of the people of the Commonwealth (74) See, e.g., Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR, at pp 206-207. Provided that the differentiation of and between those to whom they are addressed does not involve discrimination of a kind that infringes their inherent equality as people of the Commonwealth, such laws will not infringe the doctrine of equality under the law and before the courts.

14. Even where a law does infringe the doctrine of legal equality, the nature of the particular grant of legislative power may be such as to rebut the assumption that such discrimination was unauthorized by the relevant provision of the Constitution (75) See, e.g., Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31, at p 83; Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR, at pp 208, 219, 233, 250-251, 260. Thus, for example, a law which deprives a particular person of his or her property, albeit on just terms, for a purpose in respect of which the Parliament has power to make laws, may discriminate against the person who is deprived of his or her property but will nonetheless be clearly within the intended ambit of the legislative power conferred by s.51(xxxi). Similarly, a legislative power to make special laws with respect to a particular class of persons, such as aliens (76) Constitution, s.51(xix) or persons of a particular race (77) s.51(xxvi), necessarily authorizes discriminatory treatment of members of that class to the extent which is reasonably capable of being seen as appropriate and adapted to the circumstance of that membership. Again, the nature of a Commonwealth legislative power may be such as to authorize laws which discriminate between persons in different geographical areas: defence (78) s.51(vi) quarantine (79) s.51(ix) and medical services such as immunization (80) s.51(xxiiiA). may provide examples. In contrast, a law which discriminates against the members of such a class or the persons in such a geographical area in a way or to an extent which goes beyond the discrimination which the relevant legislative power appears, from its nature, to be intended to authorize will exceed the limits of that legislative power.

15. Quite apart from the nature of a particular grant of legislative power, the Constitution's doctrine of the legal equality of the people of the Commonwealth must be adjusted to the extent necessary to accommodate discriminatory treatment which other provisions of the Constitution clearly contemplate. Thus, the Constitution, in providing for the exercise of the judicial power of the Commonwealth by both State and federal courts, implicitly contemplates the application, in the course of that exercise, of the different procedural laws, rules and practices of the courts concerned. Those different procedural laws, rules and practices may, in some circumstances, be of critical importance to the outcome of litigation, including criminal proceedings. Nonetheless, the doctrine of the legal equality of the people of the Commonwealth must be adjusted to accommodate them at least to the extent that the application of the procedural laws, rules and practices of a particular court is a necessary concomitant of the vesting by the Parliament of part of the judicial power of the Commonwealth in that court. Again, s.120 of the Constitution requires each State to make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences. The conditions of imprisonment may vary from State to State and, to that extent, a person imprisoned in one State for an offence against a law of the Commonwealth may be more harshly treated than a person imprisoned for the same offence in another State. If the Constitution's doctrine of legal equality would otherwise preclude such different treatment, it must be modified to permit it at least to the extent that it is a necessary concomitant of the use of State prisons to punish Commonwealth offenders. Neither of those adjustments of the doctrine of legal equality suffices, however, to save s.4(1) of the Act from invalidity. The sub-section was not a procedural section. It was not a necessary incident of the vesting of part of the judicial power of the Commonwealth in State and Territory courts. Nor were its provisions a necessary concomitant of the use of State prisons for the punishment of Commonwealth offenders.

16. As has been seen, the effect of s.4(1) of the Act was to require an extraordinary degree of disproportionality in the length of the non-parole periods fixed for federal offenders by reference to the State or internal Territory in which they were convicted. The parole system has become an established part of the administration of justice in this country. Where such a system operates, the fixing of a minimum term of imprisonment before an offender will be eligible for release on parole constitutes an integral part of the sentencing process (81) See, e.g., Reg. v. Shrestha (1991) 173 CLR, at pp 61, 68-69. Indeed, as a practical matter, the length of the non-parole period is commonly seen as the most important component of an overall custodial sentence since it tends to determine the minimum period which a convicted person will actually be required to spend in prison. The fact that the determination of a non-parole period brings into existence, at the end of that period, the executive power to release the prisoner on parole in no way detracts from the place of the non-parole period in the sentencing process.

17. There are circumstances in which the place where a person is convicted of an offence against a law of the Commonwealth is reasonably capable of being seen as a relevant consideration in determining what represents the appropriate non-parole period. Ordinarily, the State or Territory in which a federal offender is convicted is the place in which he or she is likely to serve any sentence of imprisonment and the conditions operating in the place of imprisonment can be relevant in the sentencing process and afford grounds for some differentiation from the non-parole period which would be appropriate if the person had been convicted in some other place. That being so, a law which required or authorized a court fixing the appropriate non-parole period to take account of the conditions under which a term of imprisonment will be served by a person convicted of an offence against a law of the Commonwealth would not infringe the doctrine of legal equality by discriminating between persons in relevantly identical circumstances. To the contrary, it would respect the underlying equality of the people of the Commonwealth under the law and before the courts by enabling the adjustment of the non-parole period to take account of the differences in the conditions of imprisonment.

18. Section 4(1) was not, however, a law which enabled account to be taken of actual differences in the conditions of imprisonment in different States and Territories. Its operation was unaffected by whether the particular federal offender would or would not serve any sentence of imprisonment in the State or Territory in which he or she was convicted (82) e.g. federal offenders convicted in the Australian Capital Territory ordinarily serve any sentence of imprisonment in New South Wales. It operated arbitrarily to require a court to treat the State or Territory in which a federal offender was convicted as the relevant consideration for determining which of a number of greatly varying legislative schemes should govern the fixing of a non-parole period. Thus, as has been seen, the effect of s.4(1) was that two persons who were convicted of identical offences against the same law of the Commonwealth (e.g. conspiracy with one another by telephone) and who, being in relevantly identical circumstances, were each sentenced to identical terms of imprisonment could be subjected to very different minimum terms of imprisonment according to the place in which each happened to have been convicted. The Commonwealth is one country and the criminal laws of the Commonwealth are part of one system of law to which all within the Commonwealth are equally subject. The view is simply not open that the place within the Commonwealth in which a person happens to be convicted of an offence against a law of the Commonwealth is so critical to the determination of the appropriate non-parole period that it could provide a rational basis for a law which expressly required that a person convicted in Sydney serve more than twice the minimum term of imprisonment of a person convicted in Perth. It is true that s.4(1) did not in terms impose that grossly discriminatory treatment of a person convicted in Sydney vis-a-vis a person convicted of an identical offence in Perth. All that s.4(1) did was to endorse whatever happened to result from the application of whatever non-parole system was operating in the States and internal Territories at any particular time. The fact that the extent of the actual discriminatory treatment of persons in relevantly equal or comparable circumstances was left to be determined in that way tends, however, to emphasize rather than to mitigate the lack of any rational basis for it. The result was that s.4(1) of the Act discriminated in a way which was inconsistent with the doctrine of the underlying equality of the people of the Commonwealth under the law and before the courts.

19. Nor can the discrimination effected by s.4(1) be justified as a necessary concomitant of the use of State prisons for the incarceration of federal offenders on the ground that it is necessary that similar parole conditions apply to all prisoners in the one prison or prison system. For one thing, as has been seen, there was no certainty that a federal offender would be held in a prison of the State or Territory where he or she was convicted. For another, s.4(1) was not part of a uniform parole system at all. The Commonwealth parole system remained quite distinct with different procedures for release on parole and the actual decision for release of a federal offender being entrusted to the Commonwealth Governor-General. Moreover, in a context where there was no necessary correspondence between the head sentences for Commonwealth and State or Territory offences of comparable gravity, there is nothing before the Court which could justify a conclusion that the discrimination involved in s.4(1) was a necessary concomitant of the use of State or Territory prisons for the incarceration of federal offenders. To the contrary, the repeal of s.4(1) and the introduction, in 1990, of a new Commonwealth parole system which completely abandons the approach adopted in s.4(1) demonstrates that it was not.

20. It follows that the provisions of s.4(1) were ultra vires the legislative power of the Parliament and void. The purported recommendation by the Court of Criminal Appeal, pursuant to the sub-section, that the plaintiff not be considered for parole until he had served twelve and one-half years of the term of imprisonment was also void. It is unnecessary that we examine the alternative ground upon which the plaintiff attacked the validity of the provisions of s.4(1), namely, that those provisions infringed Ch.III of the Constitution. We note, however, that one possible difficulty with that argument in the present case is that, in so far as a particular Territory or State court (such as the Supreme Court of Queensland) is concerned, s.4(1) did not require such a court to act unjudicially by discriminating on irrelevant or irrational grounds in the exercise of the judicial power of the Commonwealth since it was directed to apply a single set of rules (i.e. the local non-parole provisions) in the sentencing of all federal offenders convicted before it.

21. As has been mentioned, the Act was repealed by the Crimes Legislation Amendment Act (No. 2) 1989 which commenced on 18 July 1990. Section 30(1) of that Act provided:

"Where:
(a) a person was sentenced before the commencing day to
a term of imprisonment for a federal offence; and
(b) a court had fixed or purported to fix a lesser term
of imprisonment under section 4 of the Commonwealth
Prisoners Act 1967 as the period during which the
person is not eligible to be released on parole; and
(c) on that day, that lesser period of imprisonment had
not been served or, if it had been served, the
person's release on parole had been deferred for
whatever reason;
that lesser term is to be treated, on and after that day,
for all purposes of the Crimes Act 1914 (Cth) as
amended by this Act, as if it were a non-parole period
that had been duly fixed in respect of that sentence
under Division 4 of the Crimes Act 1914 (Cth) as so
amended."

It is arguable that, as a matter of language, the reference in s.30(1)(b) to a court having "purported to fix a lesser term of imprisonment" under s.4 of the Act would apply to a recommendation of a non-parole period notwithstanding that the provisions of that section were void. If that were the correct construction of those words in par.(b), it is difficult to see how s.30(1) could escape the causes of s.4(1)'s invalidity to the extent that it purported to give some prospective operation to non-parole periods fixed pursuant to the void provisions of s.4(1) and thereby preserve the effects of the discriminatory treatment of persons convicted of offences against laws of the Commonwealth. In our view, however, those words of s.30(1)(b) were not directed to the possibility that the provisions of s.4(1) were themselves void. They should be construed as confined to cases where there was some defect in the fixing of a particular non-parole period under valid legislative provisions.

22. The questions reserved for the consideration of the Court should be answered as follows:

Question (a)
Was section 4(1) of the Commonwealth Prisoners Act 1967
prior to its repeal an invalid law of the Commonwealth in
so far as it applied to sentences for offences under
section 233B of the Customs Act 1901 (Cth)?
Answer
Yes.
Question (b)
Is section 30(1) of the Crimes Legislation Amendment Act
(No. 2) 1989 an invalid law of the Commonwealth in so far
as it applies to an order made or purported to be made
under section 4(1) of the Commonwealth Prisoners Act 1967
in respect of the orders made by the Court of Criminal
Appeal on 4 August 1989 ?
Answer
Section 30(1) does not apply to the recommendation
purportedly made by the Court of Criminal Appeal that the
plaintiff be eligible for consideration for parole at the
expiration of twelve and one-half years.

23. The question of the effect of the invalidity of the recommendation of the non-parole period upon the plaintiff's overall sentence is not raised by the questions in the case stated and has not been debated in argument. The parties will, no doubt, consider whether it is desirable for that question to be determined by this Court and, if it is, the appropriate procedure for raising it.

GAUDRON J. This case concerns non-parole periods set by the Court of Criminal Appeal of the Supreme Court of Queensland when sentencing the plaintiff, Richard Shierk Leeth, for offences under s.233B of the Customs Act 1901 (Cth) ("the Customs Act"). One offence of conspiracy to import cannabis resin attracted a sentence of 25 years with a non-parole period of 12 1/2 years. Non-parole periods were specified for the other offences. They may be put to one side, as the sentences for those offences were made concurrent with that imposed for the offence of conspiracy.

2. The sentences were imposed in August 1989 when s.4(1)(a) of the Commonwealth Prisoners Act 1967 (Cth) provided that, when sentencing for an offence under a law of the Commonwealth, a court should fix a non-parole period "if, under the law of the State or Territory where the offender is convicted, a court of that State or Territory is required (or is required except in specified circumstances) ... to fix a non-parole period ". Like provision was made in s.4(1)(b) permitting the fixing of a non-parole period if permitted under the law of the State or Territory. Then, s.4(2) provided that, in fixing a non-parole period, "the court should have regard to the matters to which it would have regard if the law of the State or Territory in which the offender was convicted were applicable". That Act was repealed with effect from July 1990 by s.29 of the Crimes Legislation Amendment Act (No.2) 1989 (Cth) ("the Crimes Amendment Act") and is, for convenience, referred to as "the repealed Act".

3. In August 1989 there was legislation in each of the States and Territories either requiring or permitting the fixing of non-parole periods (83) Penalties and Sentences Act 1985 (Vict.); Offenders Probation and Parole Act 1963 (W.A.); Parole Act 1975 (Tas); Criminal Law (Sentencing) Act 1988 (S.A.); Probation and Parole Act 1983 (N.S.W.); Corrective Services Act 1988 (Q.); Parole of Prisoners Act 1971 (N.T.); and Parole Act 1976 (A.C.T.). As might be expected, the different legislative regimes contained different provisions, conferring or controlling discretionary powers to set non-parole periods in different ways. Thus, for example, whilst there was a general discretion in South Australia (84) s.32 Criminal Law Sentencing Act 1988 (S.A.). in the case of sentences of life imprisonment or imprisonment for one year or more, the Western Australian courts (85) s.37A(2) Offenders Probation and Parole Act 1963 (W.A.). were empowered to make an order that an offender be eligible for parole, but the non-parole period was set by statute at one-third of the term of a sentence of six years or less and at two years less than two-thirds of the term of a sentence in excess of six years (86) As to Victoria, s.17(1) of the Penalties and Sentences Act 1985 (Vict.), provided for a "minimum term" which must be fixed by the court in respect of sentences of or exceeding two years. This lesser term, during which time the convicted person would not be eligible to be released on parole, was stipulated to be, in the case of sentences of other than life imprisonment, "at least 6 months less than the term of the sentence"; as to Tasmania, s.12A(1)(a) and (b) of the Parole Act 1975 (Tas.) provided that, subject to some exceptions, the statutory non-parole period was to be a period of six months or a period equal to half the period of the sentence, whichever was the greater. (See further ss.12B and 12C). On the other hand, s.7 of the Parole Act 1976 (A.C.T.) conferred a general discretion with respect to sentences of or exceeding 12 months and s.4 of the Parole of Prisoners Act 1971 (N.T.) conferred different discretions in the case of sentences of less than 12 months and sentences of 12 months or more. The Corrective Services Act 1988 (Q.) ("the Queensland Act"), which was applied in the present case by force of s.4(1)(b) of the repealed Act, conferred a general discretion (87) s.166(3). Section 166(1) had the effect that, if the discretion were not exercised, the offender would be eligible for parole after serving half of the term of imprisonment and, thus, the discretion was not always exercised. See Reg. v Lennard (1984) 1 Qd R 1, at p 10, concerning s.53 of the Offenders Probation and Parole Act 1980 (Q.), a substantially similar provision. to recommend a period after which a person should be eligible for parole. On the other hand, s.20A(2) of the Probation and Parole Act 1983 (N.S.W.) ("the N.S.W. Act") provided that, in respect of a sentence of more than three years, the non-parole period for a serious offence (88) In regard to "serious offence", see Schedule 5 of the N.S.W. should be at least three-quarters of the sentence for that offence or, where more than one serious offence was involved, three-quarters of the total length of the sentences (89) Concurrent sentences being treated as one sentence to the extent of their concurrence: s.20A(2)(b) of the N.S.W. Act. for those offences, but otherwise left the period to be set in accordance with general sentencing principles (90) Griffiths v. The Queen [1989] HCA 39; (1989) 167 CLR 372, at p 394. One of the plaintiff's co-offenders was convicted in New South Wales and, presumably, sentenced in accordance with the N.S.W. Act.

4. It is not in issue that s.4(1) of the repealed Act operated so that persons convicted of offences against the laws of the Commonwealth were treated differently according to the State or Territory in which they were convicted. That is not to overlook the possibility that, even if convicted in different States or Territories, persons who committed the same offence in the same circumstances might have received the same non-parole periods by reason of the discretion exercised in one or both cases. But, even then, the offenders would have been treated differently in that different discretions would have been exercised and the exercise of those discretions would have been controlled in different ways. And one may assume that the different provisions applied by force of s.4(1) would generally have resulted in different non-parole periods.

5. The Crimes Amendment Act not only effected a repeal of the Commonwealth Prisoners Act, but inserted new provisions into the Crimes Act 1914 (Cth) ("the Crimes Act") with respect to non-parole periods to be set thereafter (91) Section 9 of the Crimes Amendment Act inserted Div. 4 of the Crimes Act, ss.19AB-19AK. It also provided, in s.30(1), that a non-parole period set under s.4 of the repealed Act, if it had not expired or, if it had expired but the person's release had been deferred, should "be treated, ... for all purposes of the Principal Act as amended by this Act, as if it were a non-parole period that had been duly fixed" under the new provisions. The "Principal Act" is the Crimes Act.

6. It is pleaded in the statement of claim that s.4(1) of the repealed Act was invalid and, hence, that there was no power in the Court of Criminal Appeal to set the non-parole periods involved in this case. It is also pleaded that s.30(1) of the Crimes Amendment Act is invalid. The pleadings have closed and the following questions have been reserved for the consideration of the Full Court pursuant to s.18 of the Judiciary Act 1903 (Cth):

"(a) Was section 4(1) of the Commonwealth Prisoners Act
1967 prior to its repeal an invalid law of the
Commonwealth insofar as it applied to sentences for
offences under section 233B of the Customs Act 1901
(Cth)?
(b) Is section 30(1) of the Crimes Legislation Amendment
Act (No.2) 1989 an invalid law of the Commonwealth
insofar as it applies to an order made or purported
to be made under section 4(1) of the Commonwealth
Prisoners Act 1967 in respect of the non-parole
periods set for the Customs Act offences of which
the plaintiff was convicted ?"

The plaintiff has also sought special leave to appeal to this Court from the sentences imposed by the Court of Criminal Appeal. Obviously, the answers to the questions in this case will bear upon that application which has been stood over to the date on which the Court delivers judgment in this case.

7. The plaintiff claims that s.4(1) of the repealed Act was, and s.30(1) of the Crimes Amendment Act, if it purports to validate non-parole periods set under s.4(1), is, invalid because the legislative power conferred by s.51 of the Constitution is subject to an implied prohibition which precludes discrimination on the basis that an event occurred in one State or Territory rather than another. The notion of discrimination involved in the argument is that of different treatment proceeding from an irrelevant consideration. Thus, the argument asserts that a law made under s.51 of the Constitution must operate uniformly, unless it is relevant that the event by reference to which it operates occurred where it did.

8. The first question to be considered is whether s.4(1) of the repealed Act was discriminatory. Leaving aside the special problems associated with the equal treatment of persons or things that are different, in a constitutional context discrimination is constituted by the different treatment of persons or things that are not relevantly different. And even if there is a difference of that kind, different treatment will constitute discrimination if it is not reasonably capable of being seen as appropriate and adapted to that difference (92) Castlemaine Tooheys Ltd. v. South Australia [1990] HCA 1; [1990] HCA 1; (1990) 169 CLR 436, at p 478; Street v. Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, at pp 487-489, 508-511, 528-529, 555, 570- 574.

9. The argument made on behalf of the plaintiff proceeds on the basis that the State or Territory in which the offender was convicted is irrelevant in the sentencing process, particularly if, as here, the court is concerned with offences against laws which operate uniformly throughout Australia. The Commonwealth contends to the contrary, pointing to the fact that, ordinarily, that person will have been convicted in the court of a State or Territory and will be confined with prisoners sentenced in accordance with the laws of that State or Territory.

10. The Constitution, in Ch.III, envisages and permits of the exercise of federal jurisdiction by State courts - the "autochthonous expedient" as it has been called (93) Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, at p 268. And it is established constitutional doctrine that, in investing State courts with federal jurisdiction, the Commonwealth must take those courts as it finds them (94) Le Mesurier v. Connor (1929) 42 CLR 481, at pp 496, 522-523; Kotsis v. Kotsis [1970] HCA 61; [1970] HCA 61; (1970) 122 CLR 69, at p 109; The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49, at pp 64, 66; Harris v. Caladine [1991] HCA 9; (1991) 172 CLR 84, at pp 138-143. However, the fact that federal jurisdiction is invested in and exercised by State courts constituted under State law does not alter the fact that federal jurisdiction is separate and entire. It is an Australian jurisdiction (95) Breavington v. Godleman [1988] HCA 40; [1988] HCA 40; (1988) 169 CLR 41, at p 87. When exercising that jurisdiction, State courts are part of the Australian judicial system created by ChIII of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the States.

11. It is inevitable that some differences will flow from the exercise of federal jurisdiction by State courts. For example, it may be that matters of a particular kind can be dealt with by a Master or Registrar in one State, but must be determined by a judge in another (96) See, for example, The Commonwealth v. Hospital Contribution Fund. And other differences are only to be expected. In particular, it is entirely appropriate that the one body of law should regulate the conduct of proceedings in a court, whether state or federal jurisdiction is invoked. On the other hand, it is manifestly absurd that the legal consequences attaching to a breach of a law of the Commonwealth should vary merely on account of the location or venue of the court in which proceedings are brought (97) See Breavington v. Godleman (1988) 169 CLR, at p 88 where this point is made with respect to all matters falling for determination in the exercise of federal jurisdiction. That is especially so where the liberty of the individual is at stake. Thus, no relevance attaches to the fact that some, perhaps most, Commonwealth offenders are convicted in State courts exercising invested federal jurisdiction, for, as has already been said, in the exercise of that jurisdiction those courts are part of the separate and entire judicial system created by Ch.III of the Constitution.

12. Apart from those held prisoner in the Northern Territory, persons sentenced to imprisonment for Commonwealth offences are confined in State prisons. By s.120, the Constitution obliges the States to accept such prisoners in these terms:

"Every State shall make provision for the detention in
its prisons of persons accused or convicted of offences
against the laws of the Commonwealth, and for the
punishment of persons convicted of such offences, and the
Parliament of the Commonwealth may make laws to give
effect to this provision."

13. Clearly, the place in which a person is to be detained and punished is a matter which is relevant in the sentencing process. For example, it will have particular relevance if it results in the offender being unable to have visitors or otherwise enjoy facilities ordinarily available to prisoners. Similar considerations render it relevant that the sentence will be served with prisoners whose eligibility for parole will, in the main, have been determined in accordance with local State or Territory law. That is so because it is only by taking that matter into account that a court can ensure that its sentences are not a source of disharmony in the prisons. Thus, in the absence of some provision to the contrary, it will be relevant when sentencing a person for an offence against the laws of the Commonwealth to have regard in a general way to the overall relationship between head sentence and eligibility for parole under local State or Territory law.

14. It does not follow that, because it is relevant to have regard to the fact that an offender will serve his sentence with persons sentenced in accordance with local State or Territory law and, hence, to have regard to that local law, that it is appropriate for that law to be applied when sentencing for offences against the laws of the Commonwealth. The undifferentiating application of the law of the State or Territory in which conviction occurs, as was required by par.(a) and permitted by par.(b) of s.4(1) of the repealed Act, results in that which is merely relevant becoming the dominant, if not the decisive, consideration. Moreover, if a minimum period is specified (whether as a set term or as a proportion of the head sentence), that will preclude the taking into account of non-parole periods set in comparable cases, unless, of course, those cases involved the application of the same sentencing law. Indeed, to the extent that different local laws require different minimum periods, reliable comparison is virtually impossible.

15. As already indicated, it is relevant when sentencing for offences against the laws of the Commonwealth that the offender will be imprisoned with persons whose eligibility for parole will be determined pursuant to local State or Territory law. But a law making that the dominant consideration, precluding reliable comparison with Commonwealth offences of the same kind and degree and resulting, at least generally, in different non-parole periods for comparable offences is not one which could reasonably be viewed as appropriate and adapted to that consideration. Accordingly, if s.4(1) of the repealed Act was directed to accommodating that consideration - and it did not say that it was - it was nonetheless discriminatory.

16. It is convenient to first consider s.30(1) of the Crimes Amendment Act. There is nothing to suggest that that sub-section was intended to breathe life into orders made invalidly under s.4(1) of the repealed Act. Rather, it purports to deal with orders made under s.4 of the repealed Act only for the purposes of the Crimes Act as thereby amended. Relevantly, those amendments introduced new provisions with respect to the setting of non-parole periods and the release of prisoners to parole. Thus, s.30(1) operates on an order made under s.4 of the repealed Act so that a prisoner can be released to parole as if that order had been made under the provisions then inserted in the Crimes Act. If an order under s.4(1) of the repealed Act had no effect prior to the enactment of s.30(1), there is nothing upon which that sub-section can operate.

17. On the view that I take of s.30(1) of the Crimes Amendment Act, it is unnecessary to decide whether, as argued on behalf of the plaintiff, the legislative power of the Commonwealth under s.51 of the Constitution is subject to an implied general limitation forbidding laws which discriminate (in the sense used in argument) on the basis of the State or Territory in which some event took place. In my view this case raises the much narrower issue of whether the Parliament may require a court named or indicated in s.71 of the Constitution to exercise a power by reference to a criterion or to criteria which will necessarily result in discrimination of the kind discussed.

18. The power to set non-parole periods, purportedly conferred by s.4(1) of the repealed Act on the various courts exercising jurisdiction with respect to offences against the laws of the Commonwealth, is a power which can be conferred on a court, if at all, only by virtue of s.71 of the Constitution. That section provides completely and exhaustively with respect to the judicial power of the Commonwealth (98) See, for example, Huddart Parker and Co. Proprietary Ltd. v. Moorehead [1909] HCA 36; [1909] HCA 36; (1908) 8 CLR 330, at p 355; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at pp 96-98, 116; Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR, at p 289. One consequence of the complete and exhaustive nature of s.71 is that a power which is not judicial or ancillary or incidental to judicial power may not be conferred on the courts named or indicated in that section (99) Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR, at pp 271-272, 289.

19. It has often been said that judicial power has not proved susceptible of exhaustive or exclusive definition(100) Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353, at p 366; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460, at p 497; Polyukhovich v. The Commonwealth [1991] HCA 32; (1991) 172 CLR 501, at p 532. A definition of judicial power must take account of its varying character: in some cases, the content of the power will stamp it as one which can only be exercised by courts (101) Reg. v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR, at pp 271-272, 289; in others, the content will indicate that it is a power with a "double aspect" (102) Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 CLR 144, at p 151; Reg. v. Davison (1954) 90 CLR, at pp 368-369; Harris v. Caladine (1991) 172 CLR, at pp 93, 147-148, in the sense that Parliament may choose whether to confer it on a court in accordance with ChIII of the Constitution or on some other body. Another feature which renders "judicial power" difficult to define is that it cannot be defined only in terms of its content. It is necessary to have regard to the manner in and the processes by which the power is or is to be exercised(103) Harris v. Caladine (1991) 172 CLR, at p 150.

20. It is an essential feature of judicial power that it should be exercised in accordance with the judicial process(104) ibid.; Re Nolan; Ex parte Young (1991) 172 CLR, at p 496; Polyukhovich v. The Commonwealth (1991) 172 CLR, at p 703; see also Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, at p 374. A legislative direction which would require a power vested in a court to be exercised other than in accordance with that process is necessarily invalid. Its effect would be to take the power outside the concept of "judicial power". And a conferral of a power of that kind would infringe the prohibition deriving from s.71 which limits the powers which may be conferred on a court to those which are judicial or ancillary or incidental to judicial power. Of course, it might be that, in some cases, a direction of that kind would be severable, so that the power, when shorn of the direction, is validly conferred.

21. All are equal before the law. And the concept of equal justice - a concept which requires the like treatment of like persons in like circumstances, but also requires that genuine differences be treated as such - is fundamental to the judicial process. Questions of constitutional prohibition aside, if the substantive law assigns significance to some matter that in reality it does not have, it thereby becomes a matter to be taken into account in the way that the law requires. And in that way, the law may treat things which are relevantly different as though they are not, or even treat things that are not different as though they are. But that is not the same as the conferral of a power of the kind purportedly conferred by s.4(1) of the repealed Act. In the former case, a legal distinction is created or denied and the law is stated by reference to the existence or absence of that distinction. In the latter case, there is a directive to exercise a general power in different ways according to a factual matter, namely, the State or Territory in which the accused person stood trial.

22. The power purportedly conferred by s.4(1) of the repealed Act varied in nature(105)(105) Mandatory under s.4(1)(a), permissive under s.4(1)(b). and in content, not according to the nature of the offence or the circumstances of its commission, but according to the place of conviction. As such, and in the ordinary course of events, the exercise of that power would involve a failure to treat like offences against the laws of the Commonwealth in a like manner and also a failure to give proper account to genuine differences. That is only another way of saying that s.4(1) was discriminatory. But, stated in these terms, it is clear that a power of that kind is one that treats people unequally. As such its exercise is inconsistent with the judicial process.

23. It is not possible to sever the conditions attaching to the power to fix a non-parole period purportedly conferred by s.4(1) of the repealed Act from the power itself. The conditions define the power and determine the nature of the discretion or, more accurately, the several discretions encompassed within it. Because the exercise of the power would necessarily involve impermissible discrimination, it is not part of the judicial power of the Commonwealth. Nor is it incidental or ancillary to it. By reason of s.71 of the Constitution that power cannot be conferred upon the courts designated in that section to exercise the judicial power of the Commonwealth. Sub-section (1) of s.4 of the repealed Act was invalid.

24. The questions should be answered as follows:

(a) Yes.
(b) Section 30(1) of the Crimes Legislation
Amendment Act (No.2)
1989 does not operate with respect to the orders made
or purportedly made under s.4(1) of the Commonwealth
Prisoners Act 1967 in respect of the non-parole
periods set for the Customs Act offences of which the
plaintiff was convicted.

ORDER

Answer the questions reserved as follows:
1. Was section 4(1) of the Commonwealth Prisoners Act 1967
(Cth) prior to its repeal an invalid law of the Commonwealth
in so far as it applied to sentences for offences under
section 233B of the Customs Act 1901 (Cth)?
Answer: No.
2. Is section 30 (1) of the Crimes Legislation Amendment
Act (No.2) 1989 (Cth) an invalid law of the Commonwealth in so
far as it applies to an order made or purported to be made
under section 4(1) of the Commonwealth Prisoners Act 1967
(Cth) in respect iof the orders of the Court of Criminal
Appeal of Queensland.
Answer: No.