Mandatory minimum sentence provisions in old s 233C and new s 236B of the Migration Act 1958 (Cth) are constitutionally valid, notwithstanding overlapping offence provisions for substantially the same conduct with different sentencing regimes. The prosecutorial choice between overlapping offences does not confer judicial power on the Executive. The mandatory minimum operates as a floor within which ordinary sentencing principles under Part 1B of the Crimes Act 1914 (Cth) apply, with the maximum as the ceiling. The question whether there exists a broader constitutional constraint on mandatory minimum sentences derived from the judicial process and equal justice principles remains open for the High Court.
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