federal law by s 79 of the Judiciary Act. A State sentencing law (including a law providing for a sentencing guideline) would be a law regulating the exercise of jurisdiction, and would therefore only apply if picked up by s 79 of the Judiciary Act. Section 79 of the Judiciary Act does not pick up a law if the Constitution “otherwise provides”; relevantly here, if the State law (applied as federal law) would be contrary to constitutional limitations under Ch III of the Constitution that apply to Commonwealth laws. The relevant Ch III limitation is that a Commonwealth law cannot direct the courts as to the manner and the outcome of the exercise of those courts’ jurisdiction. The Ch III limit for Commonwealth laws is in substance very similar to the aspect of the doctrine discussed in paragraphs -above. For the reasons given in those paragraphs, Kable there are very good arguments that a sentencing guideline would not impermissibly dictate the manner and outcome of the sentencing court’s jurisdiction. Accordingly, a sentencing guideline could be validly applied when sentencing an offender for a State offence or offences in the exercise of federal jurisdiction. HANKS QC* GRAEME HILL Owen Dixon Chambers West 11 November 2017
federal law by s 79 of the Judiciary Act. A State sentencing law (including a law providing for a sentencing guideline) would be a law regulating the exercise of jurisdiction, and would therefore only apply if picked up by s 79 of the Judiciary Act. Section 79 of the Judiciary Act does not pick up a law if the Constitution “otherwise provides”; relevantly here, if the State law (applied as federal law) would be contrary to constitutional limitations under Ch III of the Constitution that apply to Commonwealth laws. The relevant Ch III limitation is that a Commonwealth law cannot direct the courts as to the manner and the outcome of the exercise of those courts’ jurisdiction. The Ch III limit for Commonwealth laws is in substance very similar to the aspect of the Kable doctrine discussed in paragraphs -above. For the reasons given in those paragraphs, there are very good arguments that a sentencing guideline would not impermissibly dictate the manner and outcome of the sentencing court’s jurisdiction. Accordingly, a sentencing guideline could be validly applied when sentencing an offender for a State offence or offences in the exercise of federal jurisdiction. HANKS QC* GRAEME HILL Owen Dixon Chambers West 11 November 2017