Baker v R [2004] HCA 45;

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

ALLAN BAKER APPELLANT

AND

THE QUEEN RESPONDENT

Baker v The Queen [2004] HCA 45

1 October 2004

S395/2003

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with A P Cook for the appellant (instructed by Legal Aid Commission of New South Wales)

M G Sexton SC, Solicitor-General for the State of New South Wales with R D Cogswell SC and J G Renwick for the respondent and intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)

Interveners:

H C Burmester QC with N L Sharp intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with K H Glancy intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor's Office for Western Australia)

C J Kourakis QC, Solicitor-General for the State of South Australia with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office for South Australia)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Baker v The Queen

Constitutional law (Cth) – Judicial power of Commonwealth – Vesting of federal jurisdiction in State courts – Act empowering State court to determine a minimum term and an additional term for persons serving an existing sentence of life imprisonment – Act prohibiting such determination in respect of prisoners the subject of a non-release recommendation by the original sentencing judge unless "special reasons" justified making the determination – Whether incompatible with State court being a suitable repository of judicial power of the Commonwealth.

Constitutional law (NSW) – Separation of powers – Power of State Parliament to confer function incompatible with exercise by State court of judicial power of the Commonwealth – Where class of affected persons closed and known – Whether judicial discretion preserved – Whether judicial function prescribed by Act compatible with State court being a suitable repository of judicial power of the Commonwealth.

Words and phrases – "special reasons".

Constitution, Ch III.

Sentencing Act 1989 (NSW), s 13A.

Sentencing Legislation Further Amendment Act 1997 (NSW).

1. GLEESON CJ. This is an appeal from a decision of the Court of Criminal Appeal of New South Wales¹ (Ipp AJA, Dunford and Bergin JJ) which dismissed an appeal from a decision of Greg James J of the Supreme Court of New South Wales declaring that the appellant was not eligible for a determination under s 13A of the Sentencing Act 1989 (NSW) as it stood at the relevant time. The legislation has since been changed in various respects, but nothing turns on that. In reaching his conclusion, the primary judge applied the provisions of sub-s (3A) of s 13A. Section 13A dealt with persons serving existing life sentences, that is to say, sentences of imprisonment for life imposed before or after the commencement of the section. The appellant was such a person. How that came about is explained in the reasons of other members of the Court. The primary judge referred to "the appalling nature of the [appellant's] crimes and their surrounding circumstances". In view of the issue argued on this appeal, it is unnecessary to elaborate on that. Sub-section (2) of s 13A entitled a person serving an existing life sentence to apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence. In effect, such a determination, when made, would alter an indeterminate to a determinate sentence, and would fix a minimum period as the least period which the prisoner would have to serve before being eligible for release on parole. Sub-section (9) of s 13A set out matters to which the Supreme Court, in exercising its functions under s 13A, was to have regard.

2. Section 13A distinguished between the general class of persons serving an existing life sentence and a particular class to which the appellant belonged, that is to say, persons who were the subject of a non-release recommendation. A non-release recommendation was defined by sub-s (1) as a recommendation or observation, or an expression of opinion, by the original sentencing court that the person should never be released from imprisonment. Sub-section (9)(a) threw further light on that by referring to "the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences". In some cases, including the case of the appellant, sentencing judges had recommended against the possibility of release on licence. There was no statutory basis for such recommendations, and they had no legal effect beyond the significance that any other judicial observation about an offender in the course of sentencing might have had where a question of release on licence came to be considered by the Executive. Sub-section (3) provided that, if a person was the subject of a non-release recommendation, he or she could not make an application under s 13A for 20 years from the commencement of the sentence.

"A person who is the subject of a non-release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when considering the person's application under this section, is satisfied that special reasons exist that justify making the determination."

4. The primary judge was not satisfied that special reasons existed within the meaning of sub-s (3A). The merits of that conclusion were argued in the Court of Criminal Appeal, but are not before this Court. It may be noted, however, that the argument before the primary judge and the Court of Criminal Appeal on that issue proceeded upon the assumption that the requirements of sub-s (3A) were not devoid of content, even though they may have been difficult for the appellant to satisfy. The ground of appeal to this Court is that the 1997 legislation which amended s 13A to introduce special provisions about people who were the subject of non-release recommendations was invalid. The sole ground of invalidity, which was also considered and rejected by the Court of Criminal Appeal, was expressed in the appellant's notice under s 78B of the Judiciary Act 1903 (Cth) as follows:

"The appellant seeks to raise an argument that the requirement in the legislation that he show that there are 'special reasons' to justify a determination of his life sentence [sic] is invalid as being inconsistent with the exercise by the Supreme Court of federal judicial power."

5. The kind of inconsistency relied upon is that identified in Kable v Director of Public Prosecutions (NSW)². The principle for which that case stands as authority is that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.

6. The strength of that principle lies in its constitutional legitimacy. It was not an invention of a method by which judges may wash their hands of the responsibility of applying laws of which they disapprove. In some of the judgments in Kable, references were made to public confidence in the courts. Confidence is not something that exists in the abstract. It is related to some quality or qualities which one person believes to exist in another. The most basic quality of courts in which the public should have confidence is that they will administer justice according to law. As Brennan CJ said in Nicholas v The Queen³:

"It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice."

7. Senior counsel for the appellant expressly disclaimed any suggestion that the retrospective operation of the law was relevant to his argument. He was right to do so. Retrospectivity is a slippery concept, especially in its application to laws affecting the sentencing and custodial regimes which apply to prisoners already serving sentences. Such regimes are almost always affected in various ways by legislative, judicial, and administrative decision-making. To take the most obvious example, conditions of incarceration alter from time to time with changes in executive policy. In New South Wales, the system of release on parole historically involved both judicial and administrative decisions, and the interaction of that system with administrative procedures concerning remission of sentence gave rise to the problems that were addressed by the Sentencing Act 1989 (NSW). The history of those problems, and an explanation of the legislative solution, may be seen in R v Maclay⁴. As the judgment in that case makes clear, and as should in any event be obvious, legislative and administrative changes to systems of parole and remissions usually affect people serving existing sentences. The longer the original sentence, the more likely it is that an offender will be affected by subsequent changes in penal policy. It is unnecessary to go into the history of legislation in New South Wales concerning sentencing in cases where imprisonment for life is fixed as the penalty, whether that be mandatory or the maximum. There have been a number of such changes in recent years. Some of the history before 1997 was set out by Hunt CJ at CL in Kalajzich⁵. An important practical matter was the administrative practice of release on licence, which was referred to in s 13A(9)(a). It was the knowledge by sentencing judges of that practice that gave rise to non-release recommendations of the kind referred to in s 13A(1), (3), and (3A). I expressed my concerns about such a recommendation in Jamieson, Elliott and Blessington⁶. Nevertheless, there were widely known cases in which judges made such recommendations. Other judges, without making non-release recommendations, made denunciatory remarks on sentencing, or pointed references to particular features of a case, which might have indicated a view that a sentence of life imprisonment should continue until death. It is to be remembered that prisoners who were released on licence continued to serve their sentences in the community. The licences were often subject to stringent conditions, breach of which could result in return to prison. Furthermore, release did not always mean release into the community; it might mean release into a psychiatric institution, sometimes without any realistic expectation of recovery. Statistical information about the average time spent in prison by persons sentenced to life imprisonment is of little assistance unless it is broken down in a manner that deals with the most heinous crimes. The expectations of the appellant at the time of his sentencing would have to be related, not to the "average" case, but to the worst cases and, in particular, to cases where non-release recommendations were made. In 1990, the 1900 (NSW) was amended by the introduction of s 19A, which provided that a person sentenced to penal servitude for life for the crime of murder was to serve that sentence for the term of the person's natural life. One offender sentenced under that provision was a man unrelated to the appellant but also named Baker. He had been convicted of the murders of six people and of wounding another with intent to murder. Information about averages means little for cases of that kind.

"If the choice is between reading a statutory provision in a way that will invalidate it and reading it in a way that will not, a court must always choose the latter course when it is reasonably open. Courts in a federation should approach issues of statutory construction on the basis that it is a fundamental rule of construction that the legislatures of the federation intend to enact legislation that is valid and not legislation that is invalid."

As Bowen LJ said in Curtis v Stovin¹⁰, "if it is possible, the words of a statute must be construed so as to give a sensible meaning to them".

15. It is inappropriate and impermissible to use speeches made in Parliament to seek to evade the statutory command in s 31 of the Interpretation Act, or fundamental principles of statutory interpretation. The use that can be made of such extrinsic material is governed by s 34 of the Interpretation Act. Where a dispute about the meaning of a statutory provision, such as that involved in the present case, arises the Court is not entitled to treat what was said by a member of Parliament in the course of political debate as some kind of evidence of legislative bad faith. The duty of the Court, reinforced by the Interpretation Act, in the light of which all New South Wales legislation is enacted, is to give meaning to the whole of s 13A unless it is impossible to do so.

16. The only issue of statutory interpretation that was raised in argument, and that arises for decision, is whether the expression "special reasons" is devoid of content, so that it is impossible for any case to satisfy the requirement. It is not to be overlooked that, now that the appellant is left only with his Kable argument, it suits his purposes to contend that he can never make out a case of "special reasons". That was not his primary argument in the Supreme Court, where his counsel was strongly contending that the requirements of sub-s (3A) could be, and were, satisfied. Furthermore, if Australia's obligations under international instruments are to be invoked as an aid to statutory interpretation, it is difficult to see the reasoning by which those obligations can support an interpretation of sub-s (3A) that deprives it of meaning and practical effect. If anything, those obligations should support, rather than oppose, a view that sub-s (3A) has a meaning. Senior counsel for the appellant did not invoke international norms or treaties in support of his argument that "special reasons" is an expression devoid of content. Had he done so, he would have been confronted with an obvious logical problem. On the other hand, if he were right on his construction point, and if sub-s (3A) were a meaningless charade, Kable would take him directly to his intended destination.

17. The structure of s 13A is to distinguish between ordinary cases for the application of the section and a special class of case, being the cases referred to in sub-ss (3)(b) and (3A). In the special cases, it is necessary for there to be "special reasons" to justify the making of a determination. By hypothesis, the occasion for a search for "special reasons" is that which makes the cases special, that is to say, the non-release recommendation. Bearing in mind sub-s (10A), the justification for making the determination must take account of the recommendation and the reasons that were given for it. In the ordinary case, the Supreme Court is directed by sub-s (9) to have regard to all relevant matters. Its attention is also directed specifically to certain matters. It would be absurd to construe "special reasons" in sub-s (3A) as excluding from consideration any matter covered by sub-s (9), because sub-s (9) covers all relevant matters. That would leave for consideration only irrelevant matters. The legislation does not require such a construction, and the principles of statutory interpretation referred to earlier argue strongly against it. Questions of weight and degree may arise. To take one specific example, sub-s (9) directs attention to the age of an offender at the time of the commission of the offence as a relevant matter in the ordinary case. In a particular case, the offender may have been a juvenile at the time of the offence. (This example, it should be added, is not purely hypothetical. One of the persons the subject of a non-release recommendation was 14 at the time of the offence.) It would be open to a judge to treat that as a special reason for the purposes of sub-s (3A). By reason of sub-s (9), age is always relevant, although in some cases its significance may be small. In a particular case, it may have a special significance. It would not necessarily be conclusive, but it would be open for consideration. To take another example, mentioned in the Court of Criminal Appeal, assistance given to the authorities in the detection of crime, sometimes involving extreme danger, could be a relevant matter in the ordinary case. There may also be particular circumstances in which, either alone or in combination with other factors, it could amount to a special reason in one of the special cases.

"It will be apparent that the Queensland Supreme Court (including the Court of Appeal) is not a federal court created by the Parliament within the meaning of s 71 of the Constitution, and that the litigation pending in the Court of Appeal did not involve the exercise by it of federal jurisdiction invested pursuant to a law made by the Parliament under s 77(iii) of the Constitution. Hence the reliance by the plaintiff upon the decision with respect to the Supreme Court of New South Wales in Kable v Director of Public Prosecutions (NSW).

However, Kable took as a starting point the principles applicable to courts created by the Parliament under s 71 and to the exercise by them of the judicial power of the Commonwealth under Ch III. If the law in question here had been a law of the Commonwealth and it would not have offended those principles, then an occasion for the application of Kable does not arise. The submissions for the first and third defendants and for the interveners correctly proceeded on that footing."

23. That this passage indicated the appropriate approach in the present appeal was accepted by counsel for the appellant and supported by the New South Wales Solicitor-General, who appeared for the respondent and for the Attorney-General for that State, and by counsel for the Attorney-General of the Commonwealth who appeared in support of the opposition to the appeal.

24. If the provisions of the 1997 Act under challenge had been laws of the Commonwealth, they would have complied with the principles found in Ch III of the Constitution for the exercise of federal jurisdiction by federal courts and by State courts invested pursuant to a law made under s 77(iii) of the Constitution. That being so, the appellant's attack on validity cannot succeed.

The facts

25. The appellant was born on 16 January 1948. On 20 June 1974, after an eight day trial before Taylor J and a jury, the appellant and his co‑accused were convicted on four counts, the first two of which were murder and conspiracy to murder. On the first two counts they were sentenced to life imprisonment. The sentences on the other two counts were concurrent with the life sentences and have expired. The appellant has been in custody since 13 November 1973 when he was arrested.

26. In his remarks on sentence, Taylor J detailed the circumstances of the offence and added:

"I believe that you should spend the rest of your lives in gaol and there you should die.

If ever there was a case where life imprisonment should mean what it says – the imprisonment for the whole of your lives – this is it."

It has been accepted that, in making these remarks, Taylor J was recommending that the appellant and his co‑accused never be released.

27. At the time of these events, s 19 of the Crimes Act 1900 (NSW) ("the Crimes Act") stated:

"Whosoever commits the crime of murder shall be liable to penal servitude for life."

There was then no stipulation for minimum or "non‑parole" terms. However, s 463 of the Crimes Act made provision for what the side note identified as "tickets-of-leave". In particular, sub‑s (1) stated:

"The Governor may grant to any offender a written license to be at large, within limits specified in the license, but not elsewhere, during the unexpired portion of his sentence, subject to such conditions indorsed on the license as the Governor shall prescribe, and while such offender continues to reside within the limits specified, and to perform the conditions so prescribed, his sentence shall be suspended."

Section 463 had replaced a similar provision in s 409 of the Criminal Law Amendment Act 1883 (NSW)¹⁵. The grant by the executive government of "tickets-of-leave" had an earlier history in New South Wales as an adjunct to the transportation system, dating from the days of Governor Phillip¹⁶.

28. Under the system continued by s 463 of the Crimes Act, there was always the prospect of release on licence. In Kalajzich, Hunt CJ at CL described this as "a prospect which almost universally became fact"¹⁷. However, s 463 was repealed in 1989, as was s 19¹⁸. The Sentencing Act 1989 NSW ("the 1989 Act") introduced a detailed system for the making of parole orders¹⁹ and has been amended from time to time.

29. Whilst s 463 remained in force, the judicial power to impose sentence upon a person convicted of murder was confined: the only sentence that could be passed was that the offender suffer penal servitude for life. Upon passing that sentence the judicial power was exhausted. Whether the offender served the sentence in prison or at large was a matter which then was to be decided by the Executive, not a court. If the Executive exercised the power given by s 463, the offender obtained a mercy. But in no sense (whether as a matter of substance or as a matter of form) can later legislation, altering the circumstances in which such mercy could or would be extended to a prisoner sentenced to life imprisonment, make that sentence of life imprisonment more punitive or burdensome to liberty. Whether the power to reduce the effect of a life sentence is given to a court (as the legislation now in question did) or is retained by the Executive, the original sentence passed on the offender could not be and was not extended or made heavier.

30. With respect to the operation of the 1989 Act upon sentences existing at the time of its commencement, such as those of the appellant, the term "retrospective" was used in some of the submissions. Some care is required in such usage. The point is made as follows by McHugh and Gummow JJ in The Commonwealth v SCI Operations Pty Ltd²⁰:

"However, in Coleman v Shell Co of Australia²¹, Jordan CJ pointed out that 'there has been some ambiguity in the use of the word "retrospective"'. His Honour went on to distinguish between a statute which provided that as at a past date the law shall be taken to have been that which it was not, and the creation by statute of further particular rights or liabilities with respect to past matters or transactions²²."

The 1989 Act falls in that second category identified by Jordan CJ.

31. This litigation turns upon the alleged invalidity of amendments made by the 1997 Act to the 1989 Act²³. Before that amendment, s 13A of the 1989 Act provided in sub‑s (2):

"A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence."

On such an application, the Supreme Court had the power conferred by sub‑s (4). This stated:

"The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence:

(a) set both:

(i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed; and

(ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person's natural life); or

(b) decline to determine a minimum term and an additional term."

32. Section 13A was an illustration of legislation which performed a double function of creating new rights and conferring jurisdiction to administer a remedy²⁴. These rights and that remedy were subsequent to, and independent of, the determination of the criminal guilt of the appellant and the imposing of the sentences by Taylor J. Undoubtedly the earlier steps had appertained exclusively to the exercise of judicial power.

33. The effect of an order under s 13A, setting for an existing life sentence both a minimum term of imprisonment and an additional term during which the prisoner might, by the exercise of statutory authority given a non‑judicial body, be released on parole, is to alter or vary the order of the sentencing judge. Accordingly, the new jurisdiction conferred by s 13A may readily be seen as attracting the exercise of judicial power. On a "functional analysis" of the separation of powers, the new jurisdiction takes its character from the nature of the institution to which it is entrusted²⁵. Whilst accepting this may be so in appropriate contexts, the appellant denies that here there is such a context.

34. Section 13A(3) imposed a requirement upon those serving existing life sentences of eligibility to make an application. It stated:

"Any such person is not eligible to make an application unless the person has served at least 8 years of the sentence concerned."

That sub‑section was omitted by the 1997 Act and a provision inserted, the validity of which is under challenge. Item 2 of Sched 1 to the 1997 Act stated:

"Omit section 13A(3). Insert instead:

(3) A person is not eligible to make such an application unless the person has served:

(a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or

(b) at least 20 years of the sentence concerned, if the person was the subject of a non‑release recommendation.

(3A) A person who is the subject of a non‑release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when considering the person's application under this section, is satisfied that special reasons exist that justify making the determination." (emphasis added)

The appellant contends that the emphasised passages are invalid. The effect would be that Item 2 of Sched 1 omitted the previous s 13A(3) but replaced it by a provision with the same operation. It is unnecessary to deal with the questions of severance which would be involved²⁶. This is because the primary submission respecting the invalidity of the emphasised passages in Item 2 should not be accepted.

35. Item 1 of Sched 1 (the validity of which is not challenged) inserted a definition of the expression "non‑release recommendation" into sub‑s (1) of s 13A. The definition read:

"non-release recommendation, in relation to a person serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the original sentencing court that (or to the effect that) the person should never be released from imprisonment."

It is common ground that the remarks by the sentencing judge in this case answered the description of "non‑release recommendation" thereby attracting the disqualification in the new s 13A(3A).

36. Before considering the submissions on the question of invalidity, it is convenient to say more of the course to date of the present litigation.

37. The 1997 Act came into force on the date of assent, 9 May 1997²⁷. Thereafter, on 1 August 1997, the appellant applied to the Supreme Court pursuant to s 13A for an order determining the minimum term and an additional term for the life sentence imposed on him on 20 June 1974. The application came before a judge of the Court who dismissed the application on the footing that the appellant was not eligible to make it. Section 13A(12)(b) provides that an appeal lies to the Court of Criminal Appeal in relation to a decision to decline to make a determination of a minimum term and an additional term. The sub‑section also provides that the Criminal Appeal Act 1912 (NSW) applies to such an appeal in the same way as it applies to an appeal against sentence. An appeal was taken to the Court of Criminal Appeal²⁸, apparently in reliance upon par (b) of s 13A(12), against the declaration of non‑eligibility. The appeal was dismissed.

38. In the course of its reasons, the Court of Criminal Appeal gave examples of what might conceivably be regarded as "special reasons" within the meaning of s 13A(3A)²⁹. The Court differed from the interpretation given that requirement by the primary judge. However, it concluded that none of the four reasons advanced for the appellant as constituting special reasons answered the statutory description. In the course of dealing with the question of statutory construction, the Court referred to authority indicating that the words "special reasons" appear in numerous statutory provisions and, as words of indeterminate reference, will always take their colour from their surroundings³⁰.

39. It is unnecessary and beyond the grant of special leave to appeal for this Court to embark upon an examination of the question whether the Court of Criminal Appeal erred in its consideration of the phrase and of its application to the particular facts of the case. This is because the submission by the appellant is that it is impossible to give any kind of practical content to the qualification for the entertainment by the Supreme Court of an application under s 13A.

40. Counsel for the appellant accepted that his argument depended upon the proposition that the qualification to s 13A(3A), requiring the Supreme Court to be satisfied that "special reasons" exist that justify making the determination, was a criterion devoid of meaning. Because the qualification was devoid of meaning, it followed, so the appellant's argument proceeded, that the Supreme Court would be engaged in "a charade" in seeking to identify the reasons said to be "special". All the matters that could constitute "special reasons" were matters that would necessarily be taken into account in the task of making a determination.

"[T]here are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised – nevertheless they have been accepted as involving the exercise of judicial power."

43. The appellant also challenged selection as the "trigger" to s 13A(3A) of the criterion that the applicant be the subject of a non‑release recommendation. It was not entirely apparent whether this objection was independent of or an element in the primary complaint respecting the expression "special reasons". In any event, there is no substance in the point. Counsel for the Attorney-General of the Commonwealth correctly submitted that the selection of this "trigger" was but an instance of the proposition that, in general, a legislature can select whatever factum it wishes as the "trigger" of a particular legislative consequence³⁴.

44. It may be observed that the appellant did not challenge that specification of eligibility concerned with the period for which the sentence has been served; the appellant met the criterion of 20 years. The objection appeared to fix upon the circumstance that those persons serving an existing life sentence where there had been no non‑release recommendation would be treated under the legislation without the additional requirement of special reasons imposed upon persons such as the appellant. It was submitted by the appellant, in substance, that s 13A, as a result of the changes made by the 1997 Act, operated differentially between those serving existing life sentences and that the members of that class were subdivided by the criterion of non‑release recommendation. In some respects, notably s 92 and s 117, the Constitution restrains the exercise of State legislative power by reference to notions of disability or discrimination. But it was not submitted that the present case falls within any of these categories.

45. Nor was an attempt made to imply a restriction upon State legislative power akin to the express provision proscribing denial of "the equal protection of the laws" found in s 1 of the Fourteenth Amendment to the United States Constitution. Such an attempt, at a federal level, respecting the powers of the Parliament, would have to overcome the reasoning of the majority in Leeth v The Commonwealth³⁵. That reasoning gives no encouragement to the implication of a constitutional restriction upon State legislative power.

46. The appellant relied in this connection upon remarks made by the New South Wales Court of Criminal Appeal in Jamieson, Elliott and Blessington³⁶. The Court there expressed the view that it had been inappropriate for the trial judge to recommend, as part of his remarks on sentence, that the appellants should never be released, especially where two of the offenders were young persons and there were so many different possibilities as to what might happen in the future. The Court pointed out that there appeared to be no statutory basis for making such a recommendation and none for appealing against it.

The facts and applicable legislation

58. Background facts and law: Most of the facts necessary for my opinion are contained in the reasons of the other members of the Court⁵⁹. Also stated there is a history of the legislation resulting in the insertion of s 13A in the Sentencing Act 1989 (NSW) ("the Act")⁶⁰ and the later further amendments to that section. The section instituted a separate category for a limited subclass of prisoners in New South Wales serving a sentence of life imprisonment⁶¹. I incorporate the foregoing details by reference. I wish only to add some facts drawn from the record of parliamentary debates called to our notice and derived from the Court record.

59. The parliamentary debates: Without objection, this Court was taken to the record of debates in the New South Wales Parliament by which the former regime of indeterminate life sentences for persons convicted of the crime of murder⁶², with subsequent review within the executive government, was modified by statute⁶³. Relevantly, it was changed to take into account a parliamentary purpose to "ensure truth in sentencing"⁶⁴.

60. Part of the speech of the then State Minister for Police⁶⁵, who introduced the 1997 Bill to enact the provisions challenged in this appeal, is reproduced in the reasons of Callinan J⁶⁶. The extract, in which the appellant and nine other life prisoners are identified by name, and repeatedly described as "animals"⁶⁷, helps to make clear the parliamentary objective of the added provisions thereby inserted into s 13A.

61. Sufficient certainly appears to indicate that the objective which the Minister urged on Parliament was to keep the appellant and the other named prisoners locked up forever – just as, in society, wild animals are permanently confined. It is also clear⁶⁸ that the legislation was introduced in response to a then recent decision in the Supreme Court of New South Wales by which, under s 13A in its earlier form, a judge had "redetermined" the life sentence of the appellant's co-accused, Mr Kevin Crump. By virtue of this redetermination, Mr Crump was to be eligible for release on parole on 13 November 2003. Read in its entirety, the Minister's speech leaves no doubt that the purpose of the Bill introducing the impugned provisions was to ensure that, in its application to the appellant and the other named prisoners, there would be no repetition of the possibility opened up by the order made in the case of Mr Crump.

"I now turn to the amendments in the bill. They are designed to do five things. First, the bill tells judges that we, the Parliament and the community, do not expect these most serious offenders ever to be released."

64. Whilst the Minister goes on to explain the provisions of s 13A(3A) and the need for "special reasons" why the sentence should be "redetermined at all"⁷³, the ultimate objective of the impugned provisions is made plain from an earlier explanation that the Minister gave⁷⁴:

"The Kable experience has shown this Parliament the invalidity of individual-specific legislation. … And so the Government is proposing real change. Proposing legislation that is constitutionally sound is the Government's primary objective so as not to give Crump and these nine other animals any hope for the future. The public expects nothing less. It expects real change not insane responses that will not work. … This bill is effectively the toughest sentencing legislation ever introduced into this Parliament. It will provide the bleakest possible futures for these men – amongst the most dangerous in custody in this State."

65. The Opposition speaker who immediately followed the Minister quoted the Premier in the afternoon edition of a newspaper as saying, "The legislation now before the House will ensure Kevin Crump will never be released."⁷⁵ To guarantee this objective, the Opposition speaker proposed an amendment "to make it very clear … that Mr Crump will spend the rest of his days in gaol."⁷⁶ He continued⁷⁷:

"Problems existed in regard to life sentences being served by those who had been convicted and sentenced before truth in sentencing legislation was introduced. Some difficulties involving retrospectivity are still being unravelled. That is why this legislation is before the House. No-one could possibly quibble with the proposition that … Baker and others of that extreme ilk should remain in gaol for the rest of their lives."

66. In the Legislative Council, the speech of the Attorney-General was free of most of the rhetoric just quoted. But the ensuing debate indicated the bidding contest in extreme punishments in which the members of Parliament had become involved. This feature of recent sentencing legislation has attracted commentary⁷⁸. Subject to the Constitution, only the courts of this country stand as guardians of proportionality and the avoidance of serious excesses and departures from the international law of human rights to which Australia has subscribed. Kable was a case where this Court responded.

67. The appellant's case: In order to measure the assertions made about the appellant in Parliament against the established evidence, it is relevant to have regard, as well, to the findings of the primary judge⁷⁹ (G R James J).

68. Applying the amended terms of s 13A of the Act, without benefit of any argument suggesting the invalidity of the added provisions, his Honour felt obliged by its terms to reject the submission that "special reasons exist[ed] that justify making the determination [that the life sentence be replaced by a minimum term and additional term]."⁸⁰ The limited grant of special leave in the present appeal confines this Court to the Kable point. It excludes this Court from reconsidering, as such, the challenges relating to the primary determination that the appellant was ineligible for sentence redetermination for want of "special reasons" under the Act. However, it is pertinent to note the findings which the primary judge made about the appellant in order to evaluate the actual impact of the impugned provisions. Those findings appear in stark contrast to many of the statements made in Parliament about the appellant and the legislation designed to keep him in prison for the rest of his life.

69. The primary judge concluded that, in the case of the appellant, "the statistical risk of recidivism is very low and … the particular prospect of the [appellant's] achieving rehabilitation ... is very high"⁸¹. His Honour said that the "evidence as to rehabilitation prospects was ... very powerful"⁸². Indeed, he said that it "was not, to any real extent, challenged"⁸³. He quoted evidence describing the appellant's conduct in prison as "absolutely exemplary, with no suggestion of any conduct as would pose a risk to the community." He referred to corroborated evidence that the appellant had "tried as best he could to behave as a peacemaker in the prison system even when assaulted." He noted the appellant's own acknowledgment that he would take time to adjust to being in the community after nearly three decades of incarceration. He quoted expert medical evidence deposing that the appellant "has accepted his sentence uncomplainingly and has shown, for many years, a consistent attitude of remorse and insight." This evidence, in the opinion of the primary judge, supported the view that the appellant "could go into the community without re-offending violently."

The Kable principle

74. The essence of the principle: The decision in Kable does not yield a clear, single statement of principle. There are differences in the way the judges in the majority express the implication of incompatibility (or repugnance) that led them severally to the conclusion that the Community Protection Act 1994 (NSW), in contest there, was constitutionally invalid.

75. Thus, in his reasons, Toohey J drew an analogy to the then recent decision of this Court in Grollo v Palmer⁹³. That was a case in which the Court considered the limitations on the ability of the Federal Parliament to confer non‑judicial powers upon federal judges acting in their personal capacity⁹⁴. In Kable, Toohey J stated that no function could be conferred that was "incompatible … with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power."⁹⁵ He concluded that the principle applied to the Supreme Court of a State because the imposition of non-judicial functions of such a nature diminished public confidence in the integrity of the judiciary as an institution⁹⁶.

76. In her reasons, Gaudron J also derived from Ch III of the Constitution the duty of this Court to protect the "integrity of the judicial process" and the "integrity of the courts"⁹⁷. Her Honour explained this obligation in terms of the maintenance of public confidence in the courts, a quality that would be lost if courts did not "act consistently ... [with] proceedings … conducted according to rules of general application."⁹⁸

77. In his reasons, McHugh J held that a law which would compromise the "institutional impartiality" of a Supreme Court, and which "undermined the ordinary safeguards of the judicial process", was incompatible with the exercise by such a court of the federal judicial power⁹⁹. His Honour also explained this consequence in terms of the danger, if State courts were not, or not seen to be, independent of State legislatures and executives¹⁰⁰, that they would lose the confidence of the "ordinary reasonable member of the public". It would compromise the essential institutional impartiality of a Supreme Court if a law made it the "instrument of a legislative plan, initiated by the executive government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person."

"Kable holds that Ch III of the Constitution limits the power of State Parliaments to confer non-judicial functions or non-judicial characteristics on State courts that are incompatible with, or repugnant to, the core requirements of such courts as potential recipients of federal jurisdiction, as provided for in the Constitution. The core requirements referred to include those of the manifest independence and impartiality of the judiciary in the discharge of their functions. This includes independence from legislative directions over individual judicial decisions and in the findings of fact and law that are necessary to them."

83. Initial commentators on Kable described the propounded principle as "far-reaching"¹¹⁸. For them, it represented a significant modification of the former doctrine that the Federal Parliament, when investing federal jurisdiction in State courts, was bound to accept those courts exactly as it found them¹¹⁹. After Kable, that earlier doctrine must be taken to be qualified. The implication that State courts, notably the Supreme Courts mentioned in the Constitution, must remain suitable receptacles for the vesting of federal jurisdiction imposes constraints not previously appreciated upon State legislation affecting the State jurisdiction of such courts.

84. Having propounded this implication of the Constitution, this Court should not now unduly narrow its operation. It exists, not for the protection of the judiciary, as such, but for the protection of all people in the Commonwealth. Upholding the constitutional implication expressed in Kable is at least as important for the defence of the independence and integrity of the judiciary in this country as giving effect to a hitherto undiscovered constitutional implication limiting the imposition of federal taxes on some State judicial pension rights¹²⁰. In defining constitutional implications affecting the judiciary, and in giving them operation, this Court should be even-handed in its approach. Particularly is this so in a case where no one suggested that Kable was wrongly decided or in need of reconsideration.

85. The test of federal lawmaking: It is true¹²¹ that since Kable, in H A Bachrach Pty Ltd v Queensland¹²² it was suggested by this Court that the principle stated in Kable could be tested by asking whether an impugned State law, if it were a federal law, would have offended the principles applicable to federal courts created pursuant to Ch III of the Constitution¹²³. This, indeed, may sometimes be a useful step in the path of reasoning about Kable submissions.

86. However, because the approach described in Bachrach involves an hypothesis prone to artificiality (given the subject matters normal to federal and State legislation respectively), care must be taken to avoid unnecessary dependence on such fictions. The safer course is to measure the State legislation by reference to the standard, and not to become unduly diverted by considering what would have been the case if the State law were something it was not. was a simple case requiring differentiation between a statute affecting rights in issue in pending litigation and an invasion of the judicial power. The question presented by the State legislation in the present case is more complex, as I shall show.

Reasons for incompatibility and repugnance

90. The parliamentary purpose: Mine is a minority opinion. I will state as briefly as I can the reasons that lead me to the conclusion that the impugned provisions of the Act are incompatible with ("repugnant to") the Kable principle.

91. The parliamentary record from which I have quoted makes it quite clear that the purpose of the impugned provisions¹³⁴ was to tell "judges that we, the Parliament and the community, do not expect these most serious offenders ever to be released."¹³⁵ To the extent that this Court, performing the task mandated by Kable, is in any doubt concerning the intended operation of the impugned provisions, such doubt is removed, as a matter of substance, by the Minister's repeated statements to the State Parliament to the foregoing effect.

92. It is also reinforced by the statements made for the Opposition which demanded an even more "ironclad guarantee" against release of the named prisoners, including the appellant¹³⁶. This, then, was the objective of Parliament and the setting and atmosphere in which the amending Act¹³⁷ was adopted.

93. The 1997 debates suggest that the introduction of provisions in the Act, expressed in terms of apparent generality, was aimed at nothing more than overcoming the dangers of invalidity disclosed by the "Kable experience"¹³⁸. Reading these passages should create a heightened vigilance on the part of a court such as this, whose duty is to protect the integrity of the judicial power and, relevantly, to repel attempts to "dress up" as a judicial function the making of orders which, in truth, are designed to implement the clearly stated parliamentary objective that the named "animals", including the appellant, never "see the exit sign at the prison gate."¹³⁹

94. Identified subjects of the law: It is true that the impugned provisions are not confined to the appellant as an individual (as was the case of the legislation in question in Kable). Further, the law is ostensibly expressed in terms of a law of general application¹⁴⁰. However, in its operation it is clearly confined to the nominated prisoners, including the appellant. They were ten in number. To this extent, the legislation is in nature. It is to be distinguished from the legislation upheld by the majority of this Court in . There, although enacted in the knowledge of known cases immediately affected (said to have been five in number), the impugned provision of the 1901 (Cth) was stated in terms of general application, not speaking to a limited class. In this way, it was held in that the law in question avoided the invalidation principle explained by the Privy Council in .

"[I]t is hardly credible that any government department would promote or that Parliament would pass retrospective criminal legislation."

However, the incredible sometimes happens – and, in effect, the provision to enlarge the judicial punishment of the appellant and of the small group of "animals" in his class, is an instance against which Lord Reid warned.

110. Co-accused's redetermination: The impugned provisions were also clearly enacted as an immediate response to the redetermination of the life sentence imposed on the appellant's co-accused, Mr Crump. That redetermination, which had applied to Mr Crump the then applicable law, prompted the introduction of the amendments, applicable to the appellant's case, against which he complains.

111. There was no appeal by State authorities against the judicial redetermination order in Mr Crump's case¹⁶⁵. Although the ordinary principle of parity in sentencing¹⁶⁶ is not available to assist the appellant in his constitutional challenge (and although a further statute was later introduced in an endeavour to prevent or impede Mr Crump's release on parole after November 2003)¹⁶⁷, the resulting disparity is a vivid illustration of what can occur when a legislature, in response to earlier judicial sentencing orders, enacts new laws designed to prevent the operation of a true law of general application governing criminal punishment. It is a further reason for heightened vigilance on the part of this Court to the attempt to involve State Supreme Court judges in the implementation of such ad hominem laws.

112. An arbitrary and discriminatory criterion: An additional indication of the invalidity of the impugned law can be seen in its seriously arbitrary and discriminatory character.

113. By its superimposition of criteria, relevant to the completion of the initial custodial part of the appellant's life sentence, dependent upon the making of a "non-release recommendation"¹⁶⁸, the New South Wales Parliament chose as a "trigger" for the new legislation an earlier judicial act that, at the time it occurred, had no normative legal operation. Given that Parliament had earlier fixed the applicable sentence for conviction of murder¹⁶⁹, it was not part of the sentencing judge's legal function to attempt to change or re-express that sentence. Under the law at the time of the sentence, the actual duration of custody was left to administrative bodies. They, and not the sentencing judge, were responsible in law for determining any later release to the community of a prisoner in the position of the appellant so that he would serve the remainder of his sentence in the community.

"I regard it as no part of my function to seek to express the horror and revulsion that is felt in the community when offences of this nature are committed. My task is simply to impose sentence according to law."

The more reticent judges would also have been aware that, of its character, an indeterminate sentence, especially with young offenders, would result in the close examination of the prisoner's case from time to time and commonly in the prisoner's release to serve the balance of the life sentence in the community. Thus, in sentencing Shirley Conlon to penal servitude for life for murder in December 1978, Slattery J, in the Supreme Court of New South Wales, declined to make any recommendation about her future release. He did this on the stated ground that it would "be of little value", although he indicated that the type of crime of which the prisoner had been convicted was one for which "the community would expect the wrong-doer to be incarcerated for a long time, if not forever."¹⁷⁴ When, in 1992, that prisoner sought redetermination of her life sentence under s 13A of the Act, as then providing, her case came again before Slattery J, who was still in office. A minimum term of 15 years with an additional term of 12 years was fixed by his Honour, notwithstanding his earlier comment. In the "redetermination", based on the detailed evidence then available, Slattery J pointed out that there had been little, if any, need for psychiatric and psychological evidence concerning the prisoner at the time of the original sentence. This was so because of the mandatory punishment fixed by law.

118. A later judge, obliged to consider the appellant's application under the impugned provisions, would know that, in the nature of things, the appellant had no facility at his sentencing proceedings to challenge the "recommendation" made by the sentencing judge in his case. Thus, it would not then have been competent for the appellant to tender evidence in rebuttal of the judge's conclusion, even if exceptionally or intuitively he had been warned that some such recommendation was likely to be expressed. The appellant could not appeal against the "recommendation". The sentencing judge himself could not have predicted that, a quarter of a century later, the State Parliament would attach consequences of great seriousness for the liberty of the appellant that would cut across the sentence imposed on him in accordance with the sentencing law and judicial process applicable in 1974.

119. In 1992, the making of such judicial "recommendations" was expressly disapproved by the Court of Criminal Appeal of New South Wales¹⁷⁵. As that Court then pointed out, "especially where the offender is a young person, and there are so many different possibilities as to what might happen in the future, it is normally not appropriate for a sentencing judge to seek to anticipate decisions that might fall to be made by other persons, and in other proceedings, or under other legislation, over the ensuing decades."¹⁷⁶ Every one of those words applies to the remarks of the judge sentencing the present appellant. Contemporary judges of the Supreme Court of New South Wales know, and act upon, the 1992 instruction. Yet, in a case such as the present, by the impugned provisions of the Act, they are obliged to attach to the "recommendation" the most serious consequences for the appellant's liberty in order to fulfil the stated purpose of Parliament.

120. Indeterminate sentence and change: The observations of the Court of Criminal Appeal in 1992, designed to discourage such "non-release recommendations", did no more than to acknowledge the fact that individuals, especially if young when sentenced, sometimes change over time. They are not the same person years and decades later as they were when originally sentenced. According to the evidence in this case, accepted by the primary judge, the appellant is a completely different person from the person sentenced for terrible crimes in 1974.

121. This was one of the reasons that lay behind the system of indeterminate sentences in force at that time: to acknowledge and promote the potential for individual change and reform; to encourage good conduct whilst serving the mandatory life sentence under an arduous prison classification; and to hold out hope for the prisoner's future, consistent with notions of individual redemption and human dignity.

"Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age".

On a true construction of the impugned law, Mr Blessington's "possibility of release" is, in my view, a chimera, and deliberately so. If that is the case, the impugned law is in conflict with binding international obligations expressing universal human rights and fundamental freedoms.

138. Whilst the case of the appellant, Mr Baker, measured against international law, is not so clear, there do appear to be serious departures, in respect of the impugned law, from obligations accepted by Australia under the International Covenant on Civil and Political Rights ("ICCPR")¹⁹⁹.

139. In particular, it would appear that Arts 6.1, 7, 9.1, 14.1 and 15.1 may be engaged by the appellant's case. The last-mentioned article includes the obligation that no heavier penalty be imposed on a person held guilty of a criminal offence "than the one that was applicable at the time when the criminal offence was committed." It also provides that "[i]f, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby." The course of the legislative history governing life sentences in New South Wales, described above, appears to have deprived the appellant of rights stated in this article of the ICCPR.

140. Australian courts regularly construe ordinary statutes, so far as possible, to ensure that they do not operate in breach of international law²⁰⁰, or, as it used to be put, "the comity of nations"²⁰¹. There is no reason why this Court should construe the Australian Constitution, a special statute, in a different, more restrictive and more parochial way²⁰². On the contrary, because the ultimate source of the binding power of the Australian Constitution lies in the sovereign will of the people of Australia, it should be accepted that their Constitution will be construed in the same way as ordinary statutes are. No other approach would reflect that sovereign will. No other approach is compatible with the operation of national constitutions²⁰³, or with the jurisprudence of other final courts²⁰⁴, in the contemporary world.

141. Conclusions: Kable applies: To the extent that there are (as I would concede) certain ambiguities and uncertainties in the ambit of the Kable principle, as so far elucidated, this Court should apply the principle in a way that avoids needless disharmony with the universal obligations of international law²⁰⁵. In particular, it is offensive to those obligations to require State judges to go through the paces enacted by the impugned provisions when the clear purpose, and the manifest effect, of such provisions was to involve the judges in a function without real content for the liberty of a prisoner except to give effect to a law that deliberately prevents the named persons from having any real chance of redetermination of their life sentences as the Act pretends to provide them.

Conclusions and orders

143. The appellant has made good his challenge to ss 13A(3)(b) and 13A(3A) of the Act, by the operation of the constitutional principle expressed by this Court in Kable. I agree with the appellant's submission that, notwithstanding the provisions of the Interpretation Act 1987 (NSW)²⁰⁷, this Court should not leave in place portion of the offending law as amended, when it cannot be confident that such portion would have been enacted had the New South Wales Parliament appreciated the invalidity of the change that it attempted in 1997.

144. It follows that the appeal should be allowed. The judgment and orders of the Court of Criminal Appeal of New South Wales should be set aside. In their place it should be declared that ss 13A(3)(b) and 13A(3A) of the Sentencing Act 1989 (NSW), as in force on 1 August 1997, were invalid. It should be ordered that the appeal from the judgment and orders of G R James J to the Court of Criminal Appeal be upheld. The declaration made by his Honour should be set aside. The appellant's application should be remitted to the Supreme Court of New South Wales for determination according to law.

145. CALLINAN J. The issue which this appeal raises is whether a New South Wales enactment which takes as criteria for its application, the prior making of a recommendation of a judge that a person sentenced to life imprisonment serve that sentence in full, in circumstances in which not all judges customarily made a recommendation of that kind, and the demonstration of special reasons for an earlier release, requires judges, impermissibly, to exercise non-judicial power.

Facts

146. In late 1973 the appellant was charged, together with another person, with murder, conspiracy to murder, and two counts of malicious wounding of a police officer with intent to prevent lawful apprehension. The circumstances of the crimes were horrendous. The appellant worked on a farm near Collarenebri, New South Wales, on which Mrs Morse lived with her husband and their three children. He had come to know the children and had been the beneficiary of kindnesses by Mrs Morse. After he had left the farm he and a man named Crump began surveillance of it to await an occasion when Mr Morse was absent from it. When that occasion arose they stole his car and other property, assaulted, bound, blindfolded and gagged Mrs Morse, abducted and twice raped her, self-evidently keeping her in a state of terror, and then murdered her. The appellant was convicted of all of the offences and on 20 June 1974 was sentenced to life imprisonment on his conviction for murder (a victim other than Mrs Morse) and conspiracy to murder Mrs Morse, and to 15 years hard labour for the other offences. The charges were laid and determined in New South Wales, where the conspiracy to murder Mrs Morse was made, and not in Queensland, where her murder was committed.

147. At the time of the convictions, life imprisonment was the mandatory sentence for murder and the maximum sentence for conspiracy to murder. In sentencing the appellant and his co-offender, the trial judge Taylor J said:

"I believe you should spend the rest of your lives in gaol and there you should die. If ever there was a case where life imprisonment should mean what it says ... this is it."

148. There is no doubt that his Honour's statement amounts to a "non-release recommendation" within the statutory definition contained in s 13A(1) of the relevant enactment which I will set out later.

149. The appellant remains in custody where he has been held for the last 30 years. He has served the whole of the sentences imposed in relation to the wounding of a police officer and continues to serve the sentences of life imprisonment.

150. On 1 August 1997 the appellant applied, pursuant to s 13A of the Sentencing Act 1989 (NSW) ("the Sentencing Act"), to the Supreme Court of New South Wales for an order determining a minimum term, and an additional term for the life sentences imposed upon him.

151. The Sentencing Act was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) which came into force on 3 April 2000. It was common ground, however, that the appellant's application should be dealt with under s 13A of the repealed Act which was as follows:

"(1) In this section:

existing life sentence means a sentence of imprisonment for life imposed before or after the commencement of this section, but does not include a sentence for the term of a person's natural life under section 19A of the Crimes Act 1900 or section 33A of the Drug Misuse and Trafficking Act 1985.

non-release recommendation, in relation to a person serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the original sentencing court that (or to the effect that) the person should never be released from imprisonment.

(2) A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence.

(3) A person is not eligible to make such an application unless the person has served:

(a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or

(b) at least 20 years of the sentence concerned, if the person was the subject of a non-release recommendation.

(3A) A person who is the subject of a non-release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when considering the person's application under this section, is satisfied that special reasons exist that justify making the determination.

(4) The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence:

(a) set both:

(i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed, and

(ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person's natural life), or

(b) decline to determine a minimum term and an additional term.

(4A) In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court).

(5) A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced.

(6) If the Supreme Court sets a minimum term and an additional term under this section, the sentence comprising those terms replaces the original sentence of imprisonment for life.

(7) A minimum term and an additional term set under this section are to be taken to have been set under this Part but are not required to comply with the other provisions of this Part.

(8) If the Supreme Court declines to determine a minimum term and an additional term, the Court may (when making that decision) direct that the person who made the application:

(a) never re-apply to the Court under this section, or

(b) not re-apply to the Court under this section for a specified period.

(8A) If the Court gives a direction under subsection (8) that a person may never re-apply to the Court under this section, the person is to serve the existing life sentence for the term of the person's natural life.

(8B) If the Court does not give a direction under subsection (8), the person may not re-apply within the period of 3 years from the date of the Court's decision to decline to determine a minimum term and an additional term.

(8C) A direction under subsection (8) that a person may never re-apply to the Court under this section or not re-apply for a period exceeding 3 years may be given only if:

(a) the person was sentenced for the crime of murder, and

(b) it is a most serious case of murder and it is in the public interest that the determination be made.

(9) The Supreme Court, in exercising its functions under this section, is to have regard to:

(a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences, and

(b) any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court, and

(c) the need to preserve the safety of the community, and

(d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application),

and may have regard to any other relevant matter.

(10) The regulations may make provision for or with respect to reports referred to in subsection (9), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court.

(10A) The Supreme Court, in exercising its functions under this section:

(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned, and

(b) must give consideration to adopting or giving effect to their substance and the intention of the original sentencing court when making them, and

(c) must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so.

(11) The Supreme Court may make a determination for a minimum term and an additional term for a sentence even though the Court was not the sentencing court, or the Court is not constituted in the same way as it was when the applicant was sentenced.

(12) An appeal lies to the Court of Criminal Appeal in relation to:

(a) the determination of a minimum term and an additional term under this section, or

(b) a decision to decline to make such a determination, or

(c) a direction that a person may never re-apply for such a determination or not re-apply for a period exceeding 3 years.

The Criminal Appeal Act 1912 applies to such an appeal in the same way as it applies to an appeal against a sentence.

(13) The reference in subsection (4A) to an offence of which a person has been convicted:

(a) includes:

(i) a finding that an offence has been proved without proceeding to a conviction against the person, or

(ii) any offence taken into account when sentence was passed against the person, but

(b) does not include:

(i) an offence that has been quashed or set aside within the meaning of Part 4 of the Criminal Records Act 1991, or

(ii) an offence of a class or description prescribed by the regulations for the purposes of this paragraph."

The judgment at first instance

152. The application was heard in the Supreme Court of New South Wales, by Greg James J²⁰⁸. The appellant submitted that in the circumstances of his good conduct in gaol, and having regard to reports showing that he had strong prospects of rehabilitation, a minimum term should be applied to his life sentences so that in the future he could be considered for parole. The appellant also relied on the fact that his co-offender's sentence had been redetermined, and argued that in accordance with orthodox principles of sentencing his should be treated similarly.

153. The Crown submitted that s 13A prevented the appellant from making the application because no special reasons existed to support or justify it. The Crown also argued that the Court should direct that the appellant never re-apply under the section.

154. After examining the legislative history of the section, previous decisions in relation to it, and the recommendation of the sentencing judge, his Honour declared that the appellant was not eligible to make the application²⁰⁹. His Honour held that the appellant's case could be distinguished from his co-offender's because of subsequent amendments to the Sentencing Act effected by the Sentencing Legislation Further Amendment Act 1997 (NSW). That Act amended s 13A, by, among other things, inserting a new s 13A(3) and introducing s 13A(3A). He held that the appellant failed to meet the conditions imposed by s 13A(3A) of the Sentencing Act which his co-offender was not required to satisfy. His Honour was not convinced that "special reasons" existed to support the making of a determination²¹⁰.

155. His Honour declined, however, to make an order preventing the appellant from ever making another application under s 13A as it was not possible, in his Honour's view, to foresee whether "special reasons" may come into existence in the future which would entitle the appellant to make a further application²¹¹.

Appeal to the New South Wales Court of Criminal Appeal

156. The appellant appealed to the New South Wales Court of Criminal Appeal (Ipp AJA, Dunford and Bergin JJ)²¹². He argued there that the primary judge wrongly decided two matters: that the appellant was ineligible to make an application under s 13A; and that the primary judge was therefore not obliged to make a determination under s 13A(4). In the alternative, the appellant submitted that if the primary judge did make a determination under s 13A(4), he erred in the test he applied as to the existence of "special reasons" under s 13A(3A). The appellant also submitted that the amending Act which introduced sub-s (3A) in s 13A of the Sentencing Act was invalid in so far as it purported to vest functions in the Supreme Court of New South Wales that are incompatible with the exercise by that Court of the judicial power of the Commonwealth.

157. The Court (Ipp AJA, Dunford and Bergin JJ agreeing) dismissed the appeal. Ipp AJA was of the opinion that Greg James J had made a determination under s 13A²¹³ and that he had applied the appropriate test with respect to "special reasons"²¹⁴. His Honour noted that the phrase "special reasons" was intended to raise the threshold of satisfaction required of a court in deciding whether to determine a minimum and an additional term. Special reasons were ones which were "out of the ordinary, unusual, and not to be expected"²¹⁵.

158. As to the third ground of appeal, the invalidity of the amending Act which introduced sub-s (3A) in s 13A of the Sentencing Act, Ipp AJA noted²¹⁶ that it was not in dispute that a determination under s 13A(4) would amount to the exercise of federal jurisdiction for the reasons expressed by Toohey J in Kable v Director of Public Prosecutions (NSW)²¹⁷. Ipp AJA also accepted that if it could be shown that there was no judicial function to be performed under s 13A because, for example, the test of special reasons was impossible to satisfy, the legislation would be invalid²¹⁸.

159. His Honour was satisfied, however, that the test of special reasons was a test capable of being satisfied. Further, the determination of a minimum and an additional term in accordance with s 13A involved the making of a decision in accordance with conventional judicial method. The Supreme Court was required to:

"undertake a traditional and familiar judicial exercise, namely, the determination of the existence of factors which condition the power of the Court to afford relief to persons falling within a defined category. Having found that the factors exist, the Court is required to exercise a judicial discretion in determining whether relief should be granted."

The legislation was not²²⁰:

"a device by parliament to ensure that persons such as the appellant would never be released from prison."

160. Based on the same reasoning, his Honour also rejected the appellant's argument that the operation of the legislation usurped judicial power because it purported to dictate the manner of the exercise of judicial discretion. The requirement of special reasons was, in effect, a legislated provision for the weighing of the different factors to be taken into account in the sentencing process²²¹. Ipp AJA said²²²:

"The legislation presently under consideration does not intrude into the essential judicial function of exercising, impartially, an objective and independent discretion. The court is not required to exercise power in a manner that is inconsistent with the judicial process²²³. The Act does not compromise the institutional impartiality of the court, nor does it undermine the ordinary safeguards of the judicial process²²⁴. Nothing that the court is required to do by the legislation would cause any loss of confidence in the judicial process. In my view, the introduction of the requirement of special reasons did not usurp judicial power."

161. Ipp AJA also rejected the argument that the legislation was invalid because the requirement of special reasons could, as seems to be the fact, apply to nine persons only. That the legislation may be aimed at a small number of people does not make it invalid²²⁵. Nor does the arbitrary nature (if such it be) of the making of a recommendation for non-release by a sentencing judge have any bearing on the validity of the legislation²²⁶.

The appeal to this Court

162. The appellant appeals to this Court on one ground only, that:

"The Court of Criminal Appeal erred in holding that the Sentencing Legislation Further Amendment Act 1997 was valid and that it did not purport to vest functions in the Supreme Court of New South Wales that are incompatible with the exercise of judicial power of the Commonwealth by the Supreme Court of that State."

163. Some further reference to the relevant proceedings, the legislation and its history should now be made. Before 1955, s 19 of the Crimes Act 1900 (NSW) ("the Crimes Act") provided that the penalty for murder was death. In that year, s 19 was amended and penal servitude for life was substituted as the penalty for murder²²⁷. This was the position at the time of the appellant's conviction in June 1974. At that time, it was possible that the appellant might, at a future date, be granted a licence from the Executive to be conditionally at large on, in effect, a ticket of leave, for the unexpired portion of his sentence²²⁸. In 1982, s 19 of the Crimes Act was amended to enable a judge to pass a sentence of shorter duration upon a person convicted of murder in cases where the person's culpability was diminished by mitigating circumstances²²⁹. At the time of the appellant's conviction, the crime of conspiracy to murder was punishable by imprisonment for life²³⁰. This statutory penalty was subsequently amended in 1989 and replaced with a maximum penalty of twenty-five years imprisonment²³¹.

164. On 5 March 1990, Crump, the co-offender, made an application for a determination of a minimum term and an additional term pursuant to s 13A of the Sentencing Act. This was rejected by the Supreme Court (Loveday J) on 10 December 1992. The appellant made a similar application which was refused by Sully J on 10 May 1993. Crump made a further application for a determination which was dealt with by McInerney J on 24 April 1997. His Honour re-sentenced Crump to a minimum of thirty years imprisonment from 13 November 1973 with an additional term of the remainder of his life. For the crime of conspiracy to murder, a term of twenty-five years dating from 13 November 1973 was fixed.

165. On 8 May 1997 a Bill entitled the Sentencing Legislation Further Amendment Bill was introduced. The appellant's counsel submitted that it was apparent from the second reading speeches in the Legislative Assembly and the Legislative Council that the Bill was directed at, in consequence of the order made in Crump's application, a group of several named persons including the appellant. Among other things, the responsible Minister said this²³²:

"Allan Baker, Kevin Crump, Michael Murphy, Leslie Murphy, Gary Murphy, John Travers, Michael Murdoch, Stephen Jamieson, Matthew Elliot, Bronson Blessington – these animals represent pure evil. These animals deserve never to see the exit sign at the prison gate. These animals are reviled and shunned by anyone who has ever heard of their heinous crimes. There is not a person in our community who does not need ­protection from these animals and the security of knowing they will never again be free.

The decision of the Supreme Court in redetermining Kevin Garry Crump's life sentence has caused grave concern in the community. Crump and Baker committed one of the most revolting crimes this nation has ever seen. Put simply, they deserve to die in gaol. Every honourable member of this House should be aware, in Crump's case, of what the sentencing judge, Justice Taylor, said in 1974. He said:

'If, in the future, some application is made that you be released on the grounds of clemency or mercy, then I would venture to suggest to those who are entrusted with the task ... that the measure of your entitlement ... should be the clemency or mercy you extended to this woman when she begged for her life.'"

166. It was shortly after the enactment of the Bill that the appellant made the application in reliance on s 13A for an order determining his sentence with which this Court is concerned.

The appellant's arguments

167. It is the appellant's submission that applicable legislation before the enactment which governs this application and sentencing principles required the Supreme Court to have regard to several matters such as the circumstances of both the offence and the offender at the time of its commission, and the prisoner's subsequent history while in prison²³³. The Court was required to have regard to, as opposed to being required to give effect to, any "relevant recommendations, observations and comments" made by the original sentencing court²³⁴. The comments of Taylor J when sentencing the appellant, to the effect that he should spend the rest of his life in gaol were "relevant comments" within the meaning of s 13A(10A)(a) and amounted to a "non-release recommendation" within the meaning of s 13A(1) following the 1997 amendments of the Sentencing Act.

168. The appellant accepts that the fact that a mischief may have, as here, been precisely identified by reference to the activities or history of named persons who may be few in number could not, of itself, sensibly deprive Parliament of the capacity to legislate in a way calculated to meet that mischief.

169. The appellant submitted that the comments of Taylor J when sentencing the appellant were not, however, properly characterizable as a judicial pronouncement or order²³⁵. Not all judges sitting in the criminal jurisdiction of New South Wales made statements or recommendations of the kind made by Taylor J in this case in 1974. The appellant contended that such statements as were made were not made after giving an offender an opportunity to make a submission that they should not be made. They were recommendations that should not have been made in any circumstances. At a time when only some, as opposed to all judges customarily expressed views as to the full service of a term of life imprisonment, those who did were trespassing upon the territory of the Executive whose role it was to decide whether to release a prisoner before his term was served: but worse, judges so recommending were creating a situation of inequality before the law, by exposing those whose life sentences were the subject of a recommendation to a greater likelihood of continued detention than those whose crimes may have been as grave, or worse, but whose sentences were imposed in the absence of such a statement. Whether, however, such recommendations were made or not, the appellant submits, most prisoners serving sentences of life imprisonment did have an expectation, or some hope at least, of earlier release. I did not take it to be disputed that the last of these propositions was accurate. Nor, however, did either party contend that there was other than a long history of the inclusion in the remarks of many, but not of course all, judges of recommendations with respect to the service of the sentences imposed. As to that I would make this observation. If a person knows or is deemed to know the penalty for his crime, submissions that he or counsel on his behalf may make, may reasonably be expected to be directed towards all aspects of it, including the possibility of commentary by a trial judge. With respect to such callous crimes as these it is almost beyond argument that the appellant's counsel at his trial would have foreseen the possibility that a judge might well make a recommendation about the appellant's actual period of detention in prison.

"The arbitrariness or non‑logical quality of the requirement imposed by subsec 13A(3A), [of] special reasons ... appear[s] from the impossibility of sensibly demonstrating any reason for a re‑determination, outside those explicitly or inherently called up in every case, ordinarily, by the other provisions of sec 13A and the nature of a re‑determination. It detracts from the judicial nature of the exercise that the intellectual weapons of deduction and application in the process of statutory interpretation and the fitting of a particular set of facts to the construed statute are used on a wild goose chase. The appearance of judicial process dresses up what effectively emerges as a legislated impossibility by which the appellant must fail by default of showing the elusive special reason. The vice of the legislation is its involvement of judges who may exercise the judicial power of the Commonwealth in such a mockery. For these reasons, the Court of Criminal Appeal erred by rejecting the arguments noted at (2002) 130 A Crim R 417 at 431 [75], [78]. Whether the legislature could simply have disqualified certain persons from making re-determination applications is another question altogether, and purely hypothetical.

...

Underlying the whole of the arbitrariness argument is that subsec 13A(3A) requires special reasons, which ought as a matter of legal process emerge from the nature of some cases by comparison with each other, for cases (as it happens just nine in number) defined simply and solely by their history including a non‑release recommendation. That discrimen is illogical because it is manifestly not the case that only the worst cases attracted such judicial comments and it was not the case that all the worst cases attracted such comments. Many judges confined themselves – properly, as it happens – to descriptions and findings of the offence and the offender. In so doing, they often used words of the utmost condemnation, such as to eg [sic] render an appeal against severity extremely difficult on orthodox grounds. But because such judges did not or perhaps would never make non‑release recommendations, offenders sentenced by them do not have to show special reasons, let alone wait for twenty (now thirty) years, in a re‑determination application. Consideration of the cases ... demonstrates the arbitrariness of the discrimen chosen for para 13A(3)(b) and subsec 13A(3A). Support for the argument is found in the comment by Lord Diplock delivering the advice of the Privy Council in Ong Ah Chuan v Public Prosecutor²³⁶, in relation to arbitrariness in statutory sentencing discrimination imposed on a court against the background of a constitutional guarantee of equality before the law. For these reasons, it was erroneous [for] the Court of Criminal Appeal to regard the arbitrary nature of the impugned provisions as not relevant to their validity²³⁷.

The parliamentary debate, as well as the nature of existing life sentences in a system where prisoners could not be forgotten, shows that this legislation was aimed at a known vituperated class, small in number. ... [T]he combination of that legislative history and background and the dubious nature of the special reasons requirement runs [the relevant] provisions foul of the principle illustrated in Liyanage v The Queen²³⁸, discussed in Nicholas v The Queen²³⁹. It may be that some of their Honours saw significance in the fact that the statute in question in Nicholas, although plainly enacted in the knowledge of known cases, was not in terms speaking of a limited class²⁴⁰. In this case, by contrast, there could never have been any addition to the class of prisoners serving existing life sentences against whom there had been a non‑release recommendation made when they were originally sentenced. Worse, from the point of view of validity of the law, is the evident parliamentary perception of the closed small class that they represented the remainder of a larger group all members of which as a matter of policy should have suffered the same restrictions as subsec 13(3A) was to impose."

172. In consequence, the appellant submits, in determining an application under s 13A the Supreme Court is not exercising judicial power, it is engaging in a futility, the section leaves nothing for the Court to decide, and the language of the section prevents all, or any genuine judicial deliberation and determination: that pre-emption of that kind is an affront to true judicial activity significantly reducing public expectations with respect to the institution of the judiciary, and involving an attack upon its integrity, and an incompatibility with, and usurpation of judicial power of the kind which Kable²⁴¹ holds to be impermissible.

173. In my opinion the appeal must fail. The appellant has not made out that the entertaining and determination of an application under s 13A of the Sentencing Act is not an exercise of judicial power. Legislative requirements that a judicial determination depend upon the demonstration of exceptional or special matters, events, circumstances, or reasons, are far from unique and have been the subject of much judicial deliberation. Regularly this Court is called upon to decide whether special leave to appeal should be granted. Speaking of the expression "exceptional circumstances" in s 2 of the Crime (Sentences) Act 1997 (UK) required for a decision not to impose a sentence of life imprisonment, Lord Bingham of Cornhill CJ said in R v Kelly (Edward)²⁴²:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

174. "Special reasons" in my opinion share those characteristics.

175. It is not necessary to catalogue the matters which could constitute special reasons within s 13A(3A) of the Sentencing Act. It may be that it is only in combination, or in increasing degrees of relevance and importance that circumstances may come to be, or provide special reasons. The fact that one or more of them may have been, or should have been taken into account in fixing the original sentence may not necessarily mean that some or other of those circumstances, whether they have in some way changed or evolved, may not come to constitute in the future, alone, or with others, "special reasons". Indeed, s 13A(4A) of the Sentencing Act, not surprisingly requires the Supreme Court to look back and to take into account the circumstances of the offence, and other offences of an applicant. Section 13A(10A) states other matters to which regard must be had. Neither sub-section, however, precludes consideration of other matters.

176. Everything is to depend upon all that is relevant and known to the Supreme Court at the time of the application. This may perhaps include such matters as improved prospects of rehabilitation, senility, disability, genuine contrition, an act or acts of heroism in prison, a reduced need for deterrence, the discovery of fresh facts, and a marked change in sentencing patterns, taken of course with the matters to which the Court is to have regard, the circumstances of the offence and other offences of the offender. I express no concluded view on these matters. The experience and wisdom of the law counsel reticence in any attempt to foresee the future, or to give in advance the complexion of special to what may, but has so far not occurred or come into contention.

177. The appellant's further submission, that everything that might ever conceivably be regarded as special is not in truth more than an ordinary sentencing consideration, that the search therefore for special reasons is a futility, and a search for a futility is not an exercise in which a court can genuinely judicially engage should similarly be rejected. There is real content, as I have just pointed out, in what the Supreme Court has to decide under s 13A(3A) of the Sentencing Act. In making such a decision the Court is not therefore embarking on a futility. In deciding the application in the present case the Court was undertaking an orthodox and conventional judicial exercise. The section does not call for the application of the principles in any of their different formulations in Kable.

178. The appeal should be dismissed.

Footnotes

1. Baker (2002) 130 A Crim R 417. ↩

2. (1996) 189 CLR 51. ↩

3. (1998) 193 CLR 173 at 197 [37]. ↩

4. (1990) 19 NSWLR 112. ↩

5. (1997) 94 A Crim R 41 at 47-49. ↩

6. (1992) 60 A Crim R 68 at 80. ↩

7. R v Baker unreported, Court of Criminal Appeal of New South Wales, 20 September 1995. ↩

8. eg United Mexican States v Cabal (2001) 209 CLR 165. ↩

9. (2000) 202 CLR 629 at 644 [28]. ↩

10. (1889) 22 QBD 513 at 517. ↩

11. Baker (2002) 130 A Crim R 417. ↩

12. (1996) 189 CLR 51. ↩

13. (1998) 195 CLR 547. ↩

14. (1998) 195 CLR 547 at 561‑562 [13]-[14] (footnote omitted). ↩