Magaming v R [2013] HCA 40

Today the High Court, by majority, upheld the validity of a provision of the Migration Act 1958 (Cth) which prescribed a mandatory minimum term of imprisonment for the offence of facilitating the bringing or coming to Australia of a group of at least five non-citizens with no lawful right to come to Australia.

The High Court held that the provision was not beyond the legislative power of the Commonwealth Parliament and did not confer judicial power on prosecuting authorities.

The Originating Case

On 6 September 2010, a boat carrying 52 passengers and four crew members was intercepted near Ashmore Reef.  The appellant, Mr Magaming, was one of the crew members.  The passengers on the boat were not Australian citizens and none had a lawful right to enter Australia.  Mr Magaming was charged with one count of facilitating the bringing or coming to Australia of a group of at least five unlawful non-citizens contrary to s 233C of the Migration Act 1958 (Cth).

Mr Magaming pleaded guilty in the District Court of New South Wales and was sentenced to the mandatory minimum term of five years' imprisonment with a non-parole period of three years. 

He sought leave to appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales, alleging that the provision prescribing the mandatory minimum term of imprisonment was invalid.  The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, concluding that the relevant provision was valid.  By special leave, Mr Magaming appealed to the High Court.

The High Court Appeal

Mr Mangaming contended that:

•  in circumstances where prosecuting authorities could choose between charging an offence that carried a mandatory minimum sentence and charging another offence that carried no mandatory sentence, the prosecuting authorities impermissibly exercised judicial power; and
• the provision of the Act prescribing the mandatory minimum sentence was incompatible with the institutional integrity of the courts and that it required a court to impose a sentence that was arbitrary.

By majority, the High Court dismissed the appeal.  The High Court held that although prosecuting authorities had a choice as to which offence to charge, that choice did not involve an exercise of judicial power.

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