KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ. On 24 August 1988, the plaintiff was convicted of the murder of Angela Rose Taylor, a constable in the Victorian police force, and was sentenced by the Supreme Court of Victoria to imprisonment for life. The Court set a non‑parole period of 28 years, during which term the plaintiff would not be eligible to be released on parole. The plaintiff's non-parole period ended on 30 September 2016. On 3 October 2016, the plaintiff applied to the Adult Parole Board ("the Board") for parole. That application remains on foot and has not been determined.
On 14 December 2016, a new provision in the Corrections Act 1986 (Vic) ("the Act"), s 74AAA, commenced operation. As originally enacted, s 74AAA relevantly provided that the Board must not make a parole order under s 74 or s 78 of the Act in respect of a prisoner convicted and sentenced to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless, among other things, the Board was satisfied that the prisoner was in imminent danger of dying, or was seriously incapacitated and, as a result, no longer had the physical ability to do harm to any person. The plaintiff commenced proceedings in this Court seeking to challenge the constitutional validity of s 74AAA (as originally enacted) and, on 20 June 2018, this Court relevantly held (without deciding the constitutional issue) that s 74AAA of the Act (as then in force) did not apply to the plaintiff.
On 1 August 2018, the Act was further amended to insert a new s 74AB and to substitute ss 74AAA and 127A. The new s 74AB applies specifically to the plaintiff; it sets out "[c]onditions for making a parole order for Craig Minogue". It provides:
"(1) The Board must not make a parole order under section 74 or 78 in respect of the prisoner Craig Minogue unless an application for the order is made to the Board by or on behalf of the prisoner.
(2) The application must be lodged with the secretary of the Board.
(3) After considering the application, the Board may make an order under section 74 or 78 in respect of the prisoner Craig Minogue if, and only if, the Board −
(a) is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner −
(i) is in imminent danger of dying or is seriously incapacitated and, as a result, he no longer has the physical ability to do harm to any person; and
(ii) has demonstrated that he does not pose a risk to the community; and
(b) is further satisfied that, because of those circumstances, the making of the order is justified.
(4) The Charter of Human Rights and Responsibilities Act 2006 has no application to this section.
(5) Without limiting subsection (4), section 31(7) of the Charter of Human Rights and Responsibilities Act 2006 does not apply to this section.
(6) In this section, a reference to the prisoner Craig Minogue is a reference to the Craig William Minogue who was sentenced by the Supreme Court on 24 August 1988 to life imprisonment for one count of murder."
Section 74AB applies to the plaintiff regardless of whether, before the commencement of that section, the plaintiff had become eligible for parole, or the plaintiff had taken any steps to ask the Board to grant the plaintiff parole, or the Board had begun any consideration of whether the plaintiff should be granted parole.
On the other hand, the substituted s 74AAA, headed "Conditions for making parole order for prisoner who murdered police officer", is in general terms. It applies if a person has been convicted of murder and the victim was a police officer. The Board must be satisfied that, relevantly, the person intended to cause, or knew that it was probable that their conduct would cause, the death of, or really serious injury to, a police officer. Because it is not necessary to consider the validity of the substituted s 74AAA, its text need not be set out.
On 23 October 2018, the plaintiff commenced proceedings in this Court challenging the constitutional validity of s 74AB and, if it applied, s 74AAA on the ground that the provisions impermissibly legislatively resentenced the plaintiff and that that legislative resentencing was beyond the powers of the Victorian Parliament. Specifically, the plaintiff contended that s 74AB and, if it applied, s 74AAA are contrary to Ch III of the Constitution insofar as: first, the substantive operation and practical effect of the provisions are to impose an additional or separate punishment to the punishment imposed by the Supreme Court at the time of sentencing by extending the non-parole period or by increasing the severity of the plaintiff's punishment; second, the provisions constitute cruel, inhuman or degrading treatment or punishment contrary to Art 10 of the Bill of Rights 1688; or third, the provisions are inconsistent with the constitutional assumption of the rule of law. The defendant, the State of Victoria, contended that s 74AB is valid and does not constitute legislative punishment, and that the question of the validity of s 74AAA did not arise in this case. The Attorneys-General for New South Wales, South Australia and Western Australia intervened in support of the defendant.
Four questions were stated for the opinion of the Court:
"(a) Is s 74AB of the Act invalid?
(b) Does the validity of s 74AAA arise in the circumstances of this case?
(c) If the answer to question (b) is 'yes', is s 74AAA invalid?
(d) Who should pay the costs of the Special Case?"
The questions should be answered:
(a) No.
(b) No.
(c) Does not arise.
(d) The plaintiff.
Section 74AB is relevantly indistinguishable from the provision upheld by this Court in Knight v Victoria. In Knight, the Court refused to reopen and overturn its decision in Crump v New South Wales. The decisions in Knight and Crump compel the conclusion that s 74AB does not alter the plaintiff's sentence, or impose additional or separate punishment on the plaintiff beyond the punishment imposed by the Supreme Court at the time of sentencing, and does not involve the exercise of judicial power. Section 74AB does no more than alter the conditions to be met before the plaintiff can be released on parole. And, contrary to the plaintiff's alternative submissions, neither Crump nor Knight should now be reopened. As neither the substantive operation nor the practical effect of s 74AB is to impose punishment on the plaintiff, it is unnecessary to consider the plaintiff's second and third contentions.
Operation and effect of s 74AB − no legislative punishment
Section 74AB is in substantively identical terms to the provision upheld in Knight. The principal difference is that s 74AB refers to the plaintiff (rather than Mr Knight).
Section 74AB is directed to the Board. It restricts the circumstances in which the Board may make a parole order under s 74 or s 78 of the Act in respect of the plaintiff. First, the section prevents the Board from making an order granting parole unless the plaintiff has lodged an application for parole with the secretary of the Board. Second, it provides that the Board "may" order that the plaintiff be released on parole "if, and only if" the Board is satisfied, among other things, that the plaintiff is in imminent danger of dying or is seriously incapacitated and that, as a result, he no longer has the physical ability to do harm to any person. The plaintiff is not at present in imminent danger of dying; nor is he seriously incapacitated.
In Knight, the Court unanimously concluded that the relevant provision did not interfere with the sentence imposed on Mr Knight in a manner that was contrary to Ch III of the Constitution and did not, in its "legal form [or] in its substantial practical operation", interfere with, set aside, alter or vary the sentence imposed by the Supreme Court.
In this proceeding, the plaintiff sought to build on the undisputed proposition that the imposition of punishment, or punitive treatment, or additional punishment or punitive treatment, as a consequence of criminal guilt is an exclusively judicial power or function. The plaintiff contended that, notwithstanding the decision in Knight, the substantive operation and practical effect of s 74AB were impermissibly to legislatively resentence the plaintiff in two respects. First, the plaintiff contended that the substantive operation and practical effect of s 74AB are to extend the non-parole period by rendering him ineligible for parole for an indefinite period beyond the non-parole period imposed by the Supreme Court and, thus, to impose an additional or separate punishment to the punishment imposed by the Supreme Court at the time of sentencing. Second, the plaintiff contended that s 74AB increases the severity of the plaintiff's punishment by causing the plaintiff to lose an opportunity to be released on parole during that period. Section 74AB does not do these things. The plaintiff's contentions are contrary to several long‑standing propositions.
Since at least the 1970s it has been recognised that there is a distinction between a judge exercising judicial power in sentencing, and the executive determining whether a person, still serving a sentence but eligible for release on parole, should be released on parole. Once a person is sentenced, the exercise of judicial power is spent and the responsibility for the future release of the person while still under sentence passes to the executive branch of the government of the State.
Here, the plaintiff was sentenced to imprisonment for life. The Court set a non-parole period of 28 years. Upon the passing of that sentence, judicial power was exhausted and the responsibility for the future of the plaintiff passed to the executive. That the responsibility for a prisoner's future passes to, and rests with, the executive is because a prisoner's eligibility for release on parole is not part of the sentencing or resentencing determination made by a court, but, rather, is a consequence of a determination made under the statutory scheme for release on parole then in place. As was said in Crump, "[a]s a matter neither of form nor substance did the sentencing determination [of a non‑parole period] create any right or entitlement in the plaintiff to his release on parole".
In the case of the plaintiff, at all times, there remained only one sentence − imprisonment for life. The fixing of the non-parole period of 28 years said nothing about whether the plaintiff would be released on parole at the end of that non-parole period. It left his life sentence unaffected as a judicial assessment of the gravity of the offence committed. Indeed, the plaintiff has no right to be released on parole and may be required to serve the whole of the head sentence. At best, the non-parole period provided the plaintiff with hope of an earlier conditional release but always subject to and in accordance with legislation in existence at the time governing consideration of any application for parole. Put in different terms, the fixing of a non-parole period does no more than provide a "factum by reference to which the parole system" in existence at any one time will operate.
Moreover, the power to release a prisoner on parole after the expiry of the non-parole period is a matter for the executive, subject to the statutory scheme and administrative policies applicable to the exercise by the Board of the executive function of determining whether to release the prisoner on parole. No less importantly, the legislative scheme, as well as practice and policies, regarding the parole system may validly change from time to time.
And that is what has occurred here. The changes made by s 74AB are legislative amendments to the parole system to prevent the Board from ordering that the plaintiff be released on parole unless satisfied, among other things, that the plaintiff is in imminent danger of dying or is seriously incapacitated and that, as a result, he no longer has the physical ability to do harm to any person. The plaintiff's non-parole period has expired and, thus, contrary to the plaintiff's submissions, he remains eligible for parole even though the circumstances in which parole may be granted by the Board have been severely constrained.
As this Court said in Crump and in Knight, legislative amendments to the parole system that impose "strict limiting conditions upon the exercise of the executive power to release" a prisoner, like those in s 74AB, "may be said to have altered a statutory consequence of the sentence" but such amendments do not impeach, set aside, alter or vary the legal effect of the sentence under which a prisoner suffers deprivation of liberty. As the Court said in Knight in relation to the substantively identical provision to s 74AB, "[b]y making it more difficult for [the plaintiff] to obtain a parole order after the expiration of the minimum term, [the section] does nothing to contradict the minimum term that was fixed".
The plaintiff's contention that s 74AB constitutes the imposition of "additional punishment" and thus a "separate exercise" of judicial power by the State Parliament is contrary to each of the foregoing premises. Section 74AB does not alter or contradict the plaintiff's non-parole period. It also does not extend, or add to, that non-parole period. The non-parole period remained 28 years.
Further, s 74AB did not make the plaintiff's sentence of life imprisonment "more punitive or burdensome to liberty". A sentence of life imprisonment is the maximum penalty that can be imposed in Victoria. Where a non-parole period is imposed, it forms part of that overall sentence. Whether a prisoner serves the rest of that sentence in prison or at large on parole, once a non-parole period has expired, is a matter for the executive. The plaintiff retains his ability to make an application for parole. But he has no right to be released on parole. And while the plaintiff might have hoped that the previous statutory regime would still be in force when the non‑parole period expired, he had no right or entitlement that that regime should continue to apply to him. The plaintiff has not lost any opportunity to be considered for release on parole − he is still eligible to be granted parole, by reason of the expiration of the non‑parole period, but the circumstances in which parole may be granted by the executive have been severely constrained. His punishment is no more severe; it remains a sentence of life imprisonment.
Thus, s 74AB did not replace a judicial judgment with a legislative judgment and neither the enactment, nor the substantive operation and practical effect, of s 74AB was a separate exercise of judicial power. Section 74AB is valid and is not contrary to Ch III of the Constitution.
The fact that the restrictions in s 74AB apply only to a single named prisoner, as in Knight, does not alter those conclusions. Of course, "[t]here are circumstances in which the party-specific nature of legislation can be indicative of the tendency of that legislation to interfere with an exercise of judicial power" but, like the position in Knight, this is not one of them.
Crump and Knight should not be reopened
Contrary to the plaintiff's alternative submissions, the decisions in Crump and Knight should not be reopened. As has been seen, Crump and Knight rested on principles "carefully worked out in a significant succession of cases". There were no material "difference[s] between the reasons of the justices constituting the majority" in Crump, and in Knight the Court delivered a unanimous judgment which declined to reopen and overrule Crump. Those decisions reflect that it is generally legislatively competent for State Parliaments to make "special, and different, provision" for exceptional cases of prisoners. And the decisions have since been "independently acted on in a manner which militate[s] against reconsideration".
Other grounds of alleged invalidity of s 74AB
As s 74AB does not, either in its substantive operation or its practical effect, impose additional or separate punishment on the plaintiff beyond the punishment imposed by the Supreme Court at the time of sentencing, the plaintiff's further contentions, that s 74AB is invalid because it imposes cruel, inhuman or degrading punishment contrary to Art 10 of the Bill of Rights or because it is inconsistent with the constitutional assumption of the rule of law, fall away.
Alleged invalidity of s 74AAA
As the plaintiff ultimately accepted, if s 74AB is valid (as it is), there is no need or scope for the operation of s 74AAA and in his case it is therefore unnecessary to consider its validity.
Questions and answers
The questions formally stated for the opinion of the Full Court should be answered as follows:
(a) Is s 74AB of the Corrections Act 1986 (Vic) invalid?
Answer: No.
(b) Does the validity of s 74AAA of the Corrections Act arise in the circumstances of this case?
Answer: No.
(c) If the answer to question (b) is "yes", is s 74AAA of the Corrections Act invalid?
Answer: Does not arise.
(d) Who should pay the costs of the Special Case?
Answer: The plaintiff.