Baker v The Queen - [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).

GLEESON CJ. This is an appeal from a decision of the Court of Criminal Appeal of New South Wales[1] (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.
[1]Baker (2002) 130 A Crim R 417.
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 Act1900 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.
Of particular relevance to this appeal is sub-s (3A), which provided:
"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."
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."
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.
[2](1996) 189 CLR 51.
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 Queen[3]:
"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."
[3](1998) 193 CLR 173 at 197 [37].
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 Maclay[4]. 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 Kalajzich[5]. 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 Blessington[6]. 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 Crimes Act 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[7]. Information about averages means little for cases of that kind.
[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.
When the 1997 amendments to s 13A, the subject of the present constitutional challenge, were made, there was a limited number of prisoners serving life sentences who had been the subject of non-release recommendations. Their identities, and the circumstances of their crimes, were widely known. The New South Wales Parliament decided that, in the scheme of s 13A, they should be treated as exceptional cases. It made special, and different, provision for them. As a matter of legislative power, the Parliament was entitled to do so. Senior counsel for the appellant acknowledged in the course of argument that, if Parliament had simply named the persons in question and excluded them from the operation of s 13A, then his Kable argument would not have arisen. It might be argued, as a matter of legislative policy, that it was unreasonable of Parliament to single out for special, and disadvantageous, treatment those prisoners who had been sentenced by judges who were willing to make non-release recommendations when others who had also committed heinous crimes might have escaped such recommendations because of the inclinations of a particular sentencing judge. As a matter of policy, I see the force of that argument, but its significance in terms of legislative power is another matter. Parliament may have taken the view that at least those people in the position of the appellant should be subject to a special regime, and if others whose crimes were just as serious were given the benefit of more favourable treatment then that would have to be accepted. It is evident from the parliamentary material referred to in argument that the view was taken that public opinion demanded some form of legislative recognition of the fact that, included amongst prisoners serving life sentences, there were people whose crimes were so extreme that sentencing judges had been moved to recommend that they should never be released. As a matter of legislative power, it was open to the New South Wales Parliament to enact legislation reflecting such opinion. The distinction drawn by the legislature was not arbitrary. If, for any reason, one wanted to identify prisoners who had committed the most heinous crimes, searching for those who had been the subject of a non-release recommendation would be at least a good start. In the view of some people, it would be unreasonable to stop there, and unfair to discriminate solely on that ground. Choices of that kind, however, are generally within legislative competence.
Persons who were the subject of a non-release recommendation had one thing in common: the legislature knew that the judges who sentenced them thought that their crimes were so serious that, in their cases, imprisonment for life should mean exactly that. There may have been other cases where sentencing judges held the same opinion, but did not express it. Even so, the fact that a particular judge expressed such an opinion is, as a matter of fact, indicative of the gravity of the conduct of an offender. It was within the power of the Parliament to select such an expression of opinion as an indication that the offending was of the most serious kind. The Parliament was entitled to create a special regime for the most serious offenders, and to select as the criterion for distinguishing the most serious offenders the making of a non-release recommendation. The selection was not arbitrary, and the criterion was not irrelevant. If it was unfair, its unfairness could have been thought to lie in the consequence that some other offenders of a most serious kind received more favourable treatment.
There is a further consideration that Parliament is entitled to take into account when legislating about crime and punishment. Parliament is not functioning in a hermetically sealed environment. The public are aware that there are some prisoners whose crimes have attracted judicial condemnation of the utmost severity, and that such condemnation, at least in the past, has sometimes taken the form of an expression of opinion that a particular prisoner should remain in custody for life. The complex legal and political issues that surrounded the 1989 "truth-in-sentencing" legislation in New South Wales resulted from a notorious difference between the appearance and the reality of some sentences. When Parliament decided to permit prisoners who had been sentenced for "life" to apply for determinate sentences, which to the public would almost certainly appear to be lower than their original sentences, it was foreseeable that it would want to address, and perhaps reserve for special treatment, the most extreme cases, however those cases were to be identified.
The weight of the appellant's Kable argument was put upon the requirement of "special reasons" in s 13A(3A). In the context of s 13A, that requirement was said to be devoid of content, and illusory. On that premise, in its application to people the subject of non-release recommendations, s 13A involved the Supreme Court in a charade. The legislature was using the forms of judicial procedure to mask the reality of the legislative decree, which was that these people were never to be released. On that premise, as a matter of principle, the case would be very close to Kable. It is the premise that is in contest.
Both in form and in substance, sub-s (3A) was a qualification upon the power of the Supreme Court to make a determination of a minimum term and an additional term in the case of a person serving an existing life sentence. Before s 13A was first introduced, sentences of life imprisonment were indeterminate. Section 13A empowered the Supreme Court to re-determine existing life sentences, make a determination of a minimum term and an additional term, and open the way to the possibility of parole. The additional term could have been for the remainder of a person's natural life (s 13A(4)). In its application to persons other than persons the subject of a non-release recommendation, the section (in sub-s (9)) required the Supreme Court to have regard to the practice of release on licence earlier mentioned, to certain kinds of post-sentence report on the offender, to the need to preserve the safety of the community, to the offender's age, and to "any other relevant matter". In the case of a person the subject of a non-release recommendation, sub-s (3A) provided that such a person was not eligible for a determination absent "special reasons ... that justify making the determination". In addition, sub-s (10A) required the Supreme Court to have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court.
There is nothing unusual about legislation that requires courts to find "special reasons" or "special circumstances" as a condition of the exercise of a power[8]. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.
[8]eg United Mexican States v Cabal (2001) 209 CLR 165.
It is the duty of a court to give meaning to the requirement of "special reasons" in sub-s (3A) unless that is impossible. That elementary principle of statutory interpretation cannot be ignored. Section 31 of the Interpretation Act 1987 (NSW) provides that an Act shall be construed so as not to exceed legislative power. In Residual Assco Group Ltd v Spalvins[9], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:
"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 Stovin[10], "if it is possible, the words of a statute must be construed so as to give a sensible meaning to them".
[9](2000) 202 CLR 629 at 644 [28].
[10](1889) 22 QBD 513 at 517.

It is inappropriate and impermissible to use speeches made in Parliament to seek to evade the statutory command in s 31 of the InterpretationAct, or fundamental principles of statutory interpretation. The use that can be made of such extrinsic material is governed by s 34 of the InterpretationAct. 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 InterpretationAct, 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.
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.
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.
Examples of this kind cannot be dismissed as fanciful. We are not dealing with an argument that it is difficult to satisfy the requirements of sub-s (3A). We are dealing with an argument that it is impossible to satisfy the requirements because the statutory phrase "special reasons" is, in this context, devoid of content. We are dealing with a legal argument aimed at demonstrating invalidity, not a political argument aimed at demonstrating the desirability of legislative amendment.
The appellant's submission, that it will always be impossible to establish "special reasons" under sub-s (3A), was not simply a rhetorical overstatement of a complaint about unfairness. It was the basis for the contention that, in its application to persons the subject of non-release recommendations, the legislative scheme was a charade, and the Supreme Court's judicial process was being used merely to implement a legislative intention that such persons would never be released. In order to make that argument good, it is not sufficient to show that it is difficult to establish special reasons, or that successful applications are likely to be rare. It is necessary to show that it is impossible to establish special reasons, and that no application could succeed. That has not been shown.
The appeal should be dismissed.
McHUGH, GUMMOW, HAYNE AND HEYDON JJ. The sole ground in this appeal from the New South Wales Court of Criminal Appeal[11] is error by that Court in holding that the Sentencing Legislation Further Amendment Act 1997 (NSW) ("the 1997 Act") was valid and did not purport to vest in the Supreme Court functions incompatible with the exercise by the Supreme Court of the judicial power of the Commonwealth. The reference to incompatibility is to the reasoning in Kable v Director of Public Prosecutions (NSW)[12]. In that case, it was held that the Community Protection Act 1994 (NSW) was invalid on the ground that the exercise of the jurisdiction conferred by it upon the Supreme Court was incompatible with the integrity, independence and impartiality of the Supreme Court as a court in which federal jurisdiction also had been invested by laws made under s 77(iii) of the Constitution.
[11]Baker (2002) 130 A Crim R 417.
[12](1996) 189 CLR 51.
Subsequently, in HA Bachrach Pty Ltd v Queensland[13], in the course of upholding the validity of certain Queensland legislation and deciding that there was no incompatibility of the nature identified in Kable, the following was said in the joint judgment of five members of the Court[14]:
"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."
[13](1998) 195 CLR 547.
[14](1998) 195 CLR 547 at 561‑562 [13]-[14] (footnote omitted).
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.
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
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.
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.
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 Phillip[16].
[15]46 Vict No 17.
[16]Woods, A History of Criminal Law in New South Wales: The Colonial Period, 1788‑1900, (2002) at 126, 165‑167; "Ticket of Leave", in The Australian Encyclopaedia, (1965), vol 8 at 497‑498.
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 19[18]. The Sentencing Act 1989 NSW ("the 1989 Act") introduced a detailed system for the making of parole orders[19] and has been amended from time to time.
[17](1997) 94 A Crim R 41 at 48.
[18]By, respectively, the Prisons (Serious Offenders Review Board) Amendment Act 1989 (NSW), s 5 and the Crimes (Life Sentences) Amendment Act 1989 (NSW), Sched 1, Item 3.
[19]See Bugmy v The Queen (1990) 169 CLR 525 at 530‑531, 536‑537.
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.
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 Ltd[20]:
"However, in Coleman v Shell Co of Australia[21], 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 transactions[22]."
The 1989 Act falls in that second category identified by Jordan CJ.
[20](1998) 192 CLR 285 at 309 [57]. See also Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 at 282 [25]-[27].
[21](1943) 45 SR (NSW) 27 at 30. See also Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194; Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 564, 578; Robertson v City of Nunawading [1973] VR 819 at 823‑824; La Macchia v Minister for Primary Industry (1986) 72 ALR 23 at 26‑27; Rodway v The Queen (1990) 169 CLR 515 at 518‑519; Pearce and Geddes, Statutory Interpretation in Australia, 4th ed (1996), par [10.4]; and cf Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 89.
[22]Coleman (1943) 45 SR (NSW) 27 at 31.
This litigation turns upon the alleged invalidity of amendments made by the 1997 Act to the 1989 Act[23]. Before that amendment, s 13A of the 1989 Act provided in sub‑s (2):
[23]The 1989 Act has since been repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), Sched 1, and replaced by the Crimes (Sentencing Procedure) Act 1999 (NSW). The latter statute in turn has been amended by the Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW).
"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."
Section 13A was an illustration of legislation which performed a double function of creating new rights and conferring jurisdiction to administer a remedy[24]. 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.
[24]James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 at 64‑65 [22]-[24].
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 entrusted[25]. Whilst accepting this may be so in appropriate contexts, the appellant denies that here there is such a context.
[25]R v Davison (1954) 90 CLR 353 at 368‑369; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 562 [15]; Sue v Hill (1999) 199 CLR 462 at 516‑517 [134]-[135]; Luton v Lessels (2002) 210 CLR 333 at 373‑374 [123]-[125].
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 involved[26]. This is because the primary submission respecting the invalidity of the emphasised passages in Item 2 should not be accepted.
[26]Discussed, for example, by Dixon J in R v Poole; Ex parte Henry [No 2] (1939) 61 CLR 634 at 652 and by Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 501‑503.
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).
Before considering the submissions on the question of invalidity, it is convenient to say more of the course to date of the present litigation.
The 1997 Act came into force on the date of assent, 9 May 1997[27]. 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 Appeal[28], apparently in reliance upon par (b) of s 13A(12), against the declaration of non‑eligibility. The appeal was dismissed.
[27]s 2.
[28]Ipp AJA, Dunford and Bergin JJ.

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 surroundings[30].
[29]Baker (2002) 130 A Crim R 417 at 428.
[30]R v Simpson (2001) 53 NSWLR 704 at 717.
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.
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.
The premise for the appellant's argument is incorrect. The qualification to s 13A(3A) may be attended by difficult questions of construction. Whether or not that is so, it is a qualification to which meaning not only can, but must, be given in the context of the facts advanced in any particular case as warranting the description "special reasons". The fact that reasons identified as "special" may (indeed almost certainly would) be relevant to the exercise of the power of determination does not strip the expression "special reasons" of meaning.
It is important, as Gaudron J stressed in Sue v Hill[31], in construing such a broadly expressed conferral of authority that it is to be exercised by a court, not by an administrator. There are numerous authorities rejecting submissions that the conferral of powers and discretions for exercise by imprecisely expressed criteria do deny the character of judicial power and involve the exercise of authority by recourse to non‑legal norms. A well‑known example is the upholding in R v Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section[32] of the conferral upon a federal court of a power of disallowance of rules of industrial organisations for imposing upon members conditions that were "oppressive, unreasonable or unjust". Subsequently, in R v Joske; Ex parte Shop Distributive and Allied Employees' Association[33], Mason and Murphy JJ observed:
"[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."
[31](1999) 199 CLR 462 at 520‑521 [148]-[149].
[32](1960) 103 CLR 368.
[33](1976) 135 CLR 194 at 215‑216. See also Sue v Hill (1999) 199 CLR 462 at 486 [45].
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 consequence[34].
[34]See, for example, Re Macks; Ex parte Saint (2000) 204 CLR 158 at 178 [25], 187‑188 [59]-[60], 200 [107], 232‑233 [208], 280 [347].
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.
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 Commonwealth[35]. That reasoning gives no encouragement to the implication of a constitutional restriction upon State legislative power.
[35](1992) 174 CLR 455.
The appellant relied in this connection upon remarks made by the New South Wales Court of Criminal Appeal in Jamieson, Elliott and Blessington[36]. 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.
[36](1992) 60 A Crim R 68 at 80.
The present appellant fixes upon Jamieson as stating all that might be said upon the subject. However, the matter is more complex. There is a long history, both in England and Australia, of recommendations by trial judges to the Executive respecting the carrying out of mandatory sentences. In an age of draconian penal systems and before the establishment of courts of criminal appeal, these procedures to engage the attention of the Executive were "an indispensable element in the administration of criminal justice"[37]. The statements by the judges under this system recommended both for and against the exercise of clemency by the Executive[38]. Juries also might ask the trial judge to recommend a defendant for clemency[39]. The celebrated trial in the New South Wales Supreme Court of R v Dean includes a striking instance of this practice[40]. Indeed, it is possible that the trial judge might invite the jury to recommend mercy[41].
[37]Radzinowicz, A History of English Criminal Law, (1948), vol 1 at 114. See also Langbein, The Origins of Adversary Criminal Trial, (2003) at 60‑61, 324‑325.
[38]Radzinowicz, A History of English Criminal Law, (1948), vol 1 at 114.
[39]Langbein, The Origins of Adversary Criminal Trial, (2003) at 324.
[40]Woods, A History of Criminal Law in New South Wales, (2002) at 410‑411.
[41]During the trial in R v Adams, Devlin J, at least, contemplated as a legitimate course "an invitation to the jury to recommend mercy if they thought it deserved": Devlin, Easing the Passing: The Trial of Dr John Bodkin Adams, (1985) at 125.
It is true that that exercise of judicial power identified in the expression "trial and conviction on indictment" ordinarily is exhausted by a finding of guilt or acceptance of a plea of guilty followed by sentence[42]. However, the practices described above would have been understood when the Constitution was adopted as encompassed in the requirement in s 80 of certain trials to be "by jury". To the extent that they might not otherwise involve the exercise of judicial power as generally understood, they nevertheless were properly to be supported as one of the historical instances identified in R v Davison[43].
[42]Putland v The Queen (2004) 78 ALJR 440 at 447 [32]; 204 ALR 455 at 464.
[43](1954) 90 CLR 353 at 369.
It follows that there is nothing repugnant to the notion of judicial power in the taking of such a past recommendation as a legislative criterion for the operation of a subsequent regime such as that provided for the Supreme Court by s 13A.
Reference also was made in argument to what was said to be the small class of persons (apparently 10 in number) who, at the enactment of the 1997 Act, were serving existing life sentences in respect of whom there were non‑release recommendations. It did not appear that any independent submission respecting invalidity was based upon that circumstance. In any event, what was said in Nicholas v The Queen[44] respecting Liyanage v The Queen[45] and the limited application of the federal law in question in Nicholas to identifiable cases would answer such a submission. In the circumstances of the present case, it could not be said that the appellant was the sole and direct "target" of the 1997 Act, so it is unnecessary to determine what would have been the consequences of such a conclusion.
[44](1998) 193 CLR 173 at 191‑193 [27]-[29], 203 [57], 211‑212 [83]-[84], 238‑239 [163]-[167], 276‑279 [246]-[255].
[45][1967] 1 AC 259.
The doctrine in Kable is expressed to be protective of the institutional integrity of the State courts as recipients and potential recipients of federal jurisdiction[46]. If the State law in question confers jurisdiction of a nature which would meet the more stringent requirements for the exercise by the Supreme Court of judicial power under investment by federal law, there is no occasion to enter upon the question of whether the less stringent requirements of Kable are met. Counsel for the Attorney‑General of the Commonwealth encapsulated the point in his submissions that, if a law satisfied the stricter tests required with respect to the judicial power of the Commonwealth, then the Court did not have to go on to ask whether it satisfied the lesser hurdle presented by the reasoning in Kable.
[46]North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 78 ALJR 977 at 985 [29]; 206 ALR 315 at 326.
The appeal should be dismissed.
KIRBY J. This appeal, from orders of the New South Wales Court of Criminal Appeal[47], involves another instance[48] of the invocation of the constitutional doctrine expressed in Kable v Director of Public Prosecutions (NSW)[49].
[47]Baker (2002) 130 A Crim R 417.
[48]See H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; Silbert v Director of Public Prosecutions (WA) (2004) 78 ALJR 464; 205 ALR 43; Silbert v Director of Public Prosecutions (WA) (2002) 25 WAR 330; North Australian Aboriginal Legal Aid Service v Bradley (2004) 78 ALJR 977; 206 ALR 315; Fardon v Attorney-General (Q) [2004] HCA 46.
[49](1996) 189 CLR 51.
Although that doctrine has been referred to on numerous occasions before intermediate courts[50], so far it has only once been held applicable[51]. This might demonstrate scrupulous observance by State legislatures of the constitutional strictures in Kable. Or it might suggest an unduly narrow appreciation of the doctrine, in effect treating Kable as a constitutional guard-dog that would bark but once.
[50]R v Moffatt [1998] 2 VR 229; Felman v Law Institute of Victoria [1998] 4 VR 324; Northern Australian Aboriginal Legal Aid Service Inc v Bradley (2002) 122 FCR 204; A-G (Qld) v Fardon [2003] QCA 416; Director of Public Prosecutions (Cth) v Tan [2003] NSWSC 717; R v England [2004] SASC 254.
[51]ReCriminal Proceeds Confiscation Act 2002 (Q) [2003] QCA 249 per Williams JA; White and Wilson JJ concurring.
In this appeal, no party or intervener challenged the majority reasoning in Kable. Nor, for that matter, did the appellant seek to rely upon a second potential constitutional implication. This would defend an implied right to due process based upon suggested assumptions of equal treatment of persons before the Judicature referred to in the Constitution[52]. I can reach my conclusions without considering any such constitutional implications.
[52]Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 606-614; Leeth v The Commonwealth (1992) 174 CLR 455 at 483-489, 501-503, cf 466-469; Kruger v The Commonwealth (1997) 190 CLR 1 at 95, 112-113; see Parker, "Protection of Judicial Process as an Implied Constitutional Principle", (1994) 16 Adelaide Law Review 341 at 350-354.
Whilst the majority in Kable explained the "extraordinary"[53] features of the New South Wales legislation there considered[54], their reasons do not suggest that the case endorsed an ad hoc determination, devoid of general application. By propounding a principle grounded in notions of "incompatibility" with the language and purposes of Ch III of the Constitution[55] (or, as it has elsewhere been expressed, "repugnance"[56] with Ch III), a principle of general operation was stated. On the face of things, a constitutional rule, so expressed, requires a court to look at the legislation impugned from the standpoint of substance, not mere form[57]. Being a constitutional doctrine, the rule in Kable requires the measurement of the challenged legislation as it could operate in fact; not a narrow approach befitting consideration of the validity of regulations made under a Dog Act.
[53]Kable (1996) 189 CLR 51 at 98.
[54]Kable (1996) 189 CLR 51 at 62-63, 102-106, referring to the Community Protection Act 1994 (NSW), ss 3, 5.
[55]Grollo v Palmer (1995) 184 CLR 348 at 365; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1.
[56]Kable (1996) 189 CLR 51 at 103-104 per Gaudron J; John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81 at 88 [43] per Spigelman CJ.
[57]See Ha v State of New South Wales (1997) 189 CLR 465 at 498.
To apply Kable, it is essential to have a theory about the operation of courts in the integrated Judicature of the Australian Commonwealth. In particular, as relevant to the present case, it is necessary to have a conception of the operation of a Supreme Court of a State, whose continued existence is expressly provided for in, and so guaranteed by, the Constitution[58].
[58]Constitution, s 73. See also covering cl 5, s 106.
The facts and applicable legislation
Background facts and law:Most of the facts necessary for my opinion are contained in the reasons of the other members of the Court[59]. 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 imprisonment[61]. 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]Reasons of McHugh, Gummow, Hayne and Heydon JJ ("joint reasons") at [25]-[38]; reasons of Callinan J at [146]-[151].
[60]By the Sentencing Legislation Further Amendment Act 1997 (NSW), with effect from 9 May 1997.
[61]By reference to the making by the sentencing judge of a "non-release recommendation", as defined. See joint reasons at [33]-[35]; reasons of Callinan J at [151]-[152].
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 murder[62], with subsequent review within the executive government, was modified by statute[63]. Relevantly, it was changed to take into account a parliamentary purpose to "ensure truth in sentencing"[64].
[62]Crimes Act 1900 (NSW), s 19 amended by the Crimes (Amendment) Act 1955 (NSW), s 5(b).
[63]Section 19 of the Crimes Act 1900 (NSW) was further amended by the Crimes (Homicide) Amendment Act 1982 (NSW), s 3, Sched 1(1) and by the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW), s 7, Sched 3. Section 19 was repealed by the Crimes (Life Sentences) Amendment Act 1989 (NSW), s 3, Sched 1(3) and a new s 19A inserted by s 3, Sched 1(4).
[64]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 30 November 1989 at 14052: Mr J Dowd (Attorney-General) speaking to the introduction of the Crimes (Life Sentences) Amendment Bill 1989 (NSW) which introduced the new s 19A into the Crimes Act 1900 (NSW). See also the speech of Mr J Hannaford (Attorney-General), New South Wales, Legislative Council, Parliamentary Debates (Hansard), 9 November 1993 at 4948, cited by McInerney J in Application of Kevin Garry Crump unreported, Supreme Court of New South Wales, 24 April 1997 at 5-7.
Part of the speech of the then State Minister for Police[65], who introduced the 1997 Bill to enact the provisions challenged in this appeal, is reproduced in the reasons of Callinan J[66]. 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.
[65]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1997 at 8337.
[66]See reasons of Callinan J at [165].
[67]The reference to "animals" is repeated elsewhere in the Minister's speech.
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 clear[68] 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[69]. 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.
[68]See passage cited by Callinan J at [165].
[69]Application of Kevin Garry Crump unreported, Supreme Court of New South Wales, 24 April 1997 per McInerney J.
It is not a reflection on the right of members of the New South Wales Parliament to speak in the chamber as they please[70] to draw attention to some of the further indications of the Minister and other members concerning the purpose of the legislation. So much has been done by virtually all of the judges who have had to consider these unusual statutory provisions. Doing so is compatible with legislation enacted by the New South Wales Parliament governing the ascertainment of the meaning and purpose of a statute of that Parliament.
[70]See Egan v Willis (1998) 195 CLR 424 at 493-494 [134] with reference to the Bill of Rights 1688, Art 9.

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 Kable[241] holds to be impermissible.
[241](1996) 189 CLR 51. See for example at 98-99 per Toohey J, 104, 107 per Gaudron J, 119-122 per McHugh J. No party sought to challenge the correctness of this case.
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."
[242][2000] QB 198 at 208.
"Special reasons" in my opinion share those characteristics.
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.
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.
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.
The appeal should be dismissed.