Cherry v State of Queensland
[2025] HCATrans 2
[2025] HCATrans 002
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B11 of 2024
B e t w e e n -
RODNEY MICHAEL CHERRY
Plaintiff
and
STATE OF QUEENSLAND
Defendant
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 4 FEBRUARY 2025, AT 9.59 AM
Copyright in the High Court of Australia
MR A.D. SCOTT, KC: If the Court pleases, I appear on behalf of the plaintiff with MS Z.G. BRERETON. (instructed by Prisoners’ Legal Service)
MR G.J.D. DEL VILLAR, KC, Solicitor‑General of the State of Queensland: May it please the Court, I appear for the defendant with my learned friends MS F.J. NAGORCKA and MR G.F. PERRY. (instructed by Crown Law (Qld))
MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with MR J.F. METZER on behalf of the Attorney‑General for the State of South Australia, intervening. (instructed by Crown Solicitor’s Office (SA))
MR N. CHRISTRUP, SC, Solicitor‑General for the Northern Territory: If the Court pleases, I appear with MR L.S. SPARGO‑PEATTIE on behalf of the Attorney‑General for the Northern Territory, intervening. (instructed by Solicitor for the Northern Territory)
MR C.S. BYDDER, SC, Solicitor‑General for the State of Western Australia: May it please the Court, with my learned friend MS D. VAN NELLESTIJN, I appear on behalf of the Attorney‑General for the State of Western Australia, intervening, in support of the defendant. (instructed by State Solicitor’s Office (WA))
MR A.D. POUND, SC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with my learned friend MS F.L. BATTEN on behalf of the Attorney‑General for the State of Victoria, intervening. (instructed by Victorian Government Solicitor’s Office)
MS J.S. CALDWELL: May it please the Court, I appear on behalf of the Attorney‑General for the State of New South Wales, who intervenes in the proceedings. (instructed by Crown Solicitor for NSW)
GAGELER CJ: Thank you, Ms Caldwell. Mr Scott.
MR SCOTT: May the Court please. If I could commence, please, your Honours, with the provisions of the Criminal Code as they stood at the time that my client was sentenced. Those provisions should appear behind part B, volume 2, tab 8 of the joint bundle of the authorities. If convenient, your Honours, can I ask that the Court please turns to page 293 of that bundle, where section 305 of the Code as it then stood will appear.
Your Honours, we submit that a couple of things should be noticed about that provision, one of which relates to the provision that appears on the immediately preceding page of the bundle, which is section 18 of the Criminal Code, which states expressly that:
This Code does not affect the royal prerogative of mercy.
We submit that informs the ambit of an order made under section 305(2), in particular that such an order does not deal with the question of when or whether a person may obtain the benefit of the exercise of that prerogative.
Similarly, if your Honours turn to section 305(2) which appears on page 294 of the bundle, your Honours will see that the ambit of an order made under that section does not deal with the question of whether or not a person may obtain exceptional circumstances parole under that section, which is distinct from the type of parole that is in issue in this case. So, what we submit is that the effect of an order made under this section is simply to deal with the question of when a person will be able to be considered for release other than by way of exceptional circumstances parole or in the exercise of the royal prerogative of mercy.
We submit, your Honours, that the effect of such an order was aptly described by then‑Chief Justice French in the matter of Crump, which appears in the joint bundle at part C, volume 3, tab 18. If I could ask your Honours, please, to turn to that case, and in particular, page 624 of the joint bundle, where page 19 of the report of that case appears.
GAGELER CJ: Yes. Perhaps, when you refer to this case, if you can give us the Commonwealth Law Reports citation.
MR SCOTT: I beg your pardon, your Honour.
GAGELER CJ: It would be helpful. Thank you.
MR SCOTT: It is 246 CLR 1, your Honours.
GAGELER CJ: Yes.
MR SCOTT: The proposition which we rely upon from that passage is the last sentence of paragraph 34, where his Honour there said that:
By fixing a minimum term, his Honour enlivened the power of the Parole Board, under the statutory scheme then in place, to consider the plaintiff’s release on parole at the expiry of the minimum term.
Ultimately, our argument is that the effect of the order made in my client’s case was that it entitled my client to be considered for parole in accordance with whatever framework exists at the time that the minimum term set by the sentencing judge was complete. As to that framework, can I take your Honours, please, to the framework as it now exists under the Corrective Services Act.
GORDON J: So, you do not challenge paragraph 36 of Chief Justice French’s judgment where he says that:
The power of the executive government of a State to order a prisoner’s release on licence or parole . . . may be broadened or constrained or even abolished by the legislature of the State.
MR SCOTT: I do not.
GORDON J: Thank you.
MR SCOTT: Thank you, your Honour. If I could please take your Honour to the framework as it now exists, which is the 13 December 2024 reprint of the Corrective Services Act, which appears in part A of the joint bundle, volume 1, tab 4. If I could start at page 100 of the joint bundle in that respect where Part 1, “Parole orders”, commences.
BEECH‑JONES J: What section?
MR SCOTT: Section 176.
GAGELER CJ: Most of us are working from a reprint.
MR SCOTT: Thank you, your Honour. Now, on that page, or that section – sections 176A to 176 deal with exceptional circumstances parole, which, of course, was not dealt with by the order made by the sentencing judge in this case. I just note, with that in mind, that the effect of one of the declarations that is in issue in this case is dealt with by section 176A and 176B, but the types of parole that were dealt with, I submit, by the order of the sentencing judge are the types dealt with in Subdivision 2, which commences with section 178, and, in particular, the relevant sections commence at section 180.
Your Honours will notice the following things. Firstly, section 180(1) entitles a prisoner to apply for parole on reaching their parole eligibility date. Subsection 2(e) permits them to apply a little earlier than that, which is within 180 days of reaching their date. As to what a parole eligibility date is: relevantly, that is defined in section 181(2)(a), which deals with the prisoner sentenced under section 305 of subsection (2) of the Criminal Code.
Your Honours will see that there has been a change since my client was sentenced, where the mandatory minimum has changed from 20 to 30 years. That reflects an amendment to the Criminal Code, but that position was not altered in respect of my client. I apologise, this is in the joint authorities bundle, but it might be in the reprints your Honours are all looking at, which is section 490A of the Corrective Services Act, which is a transitional provision which preserves – and I have a copy of it for any members of the Court that does not have the section there.
GAGELER CJ: We do not seem to have that, but we do not need it now, do we?
MR SCOTT: No.
GAGELER CJ: You can provide it ‑ ‑ ‑
MR SCOTT: Yes, your Honour, we can.
GAGELER CJ: ‑ ‑ ‑ during the morning adjournment.
MR SCOTT: The simple point is that the position – it is a transitional provision that preserves the position that previously existed such that it has not changed, from 20 to 30 years – the mandatory minimum under that section – in respect to my client. However, coming back then to section 180, the alteration of the position, as it applies to prisoners such as my client, appears at sections 180(2)(c) and (d). Your Honours will see that for a prisoner subject to the declarations referred to there – which are the types of declarations that are challenged in this case – a prisoner who would otherwise be eligible to apply for parole in accordance with the section and the determination of their sentencing judge is not able to.
I will come to the definition of the terms “restricted prisoner” and “no body‑no parole prisoner” in due course when I deal with the provisions that deal with those types of declarations, your Honours, but continuing to deal with the framework, as it would otherwise exist, could I take your Honours please to section 193, and your Honour will see there the general power conferred on the parole board to decide an application that would otherwise be made under the sections that I have just taken the Court to. The discretion is, generally speaking, wide, other than for a “restricted prisoner” or a “no body‑no parole prisoner”, as can be seen from subsection (2). If a decision is made to refuse an application for parole, the situation is governed by subsections (6) and (7), which requires the board to set a date or a period by which time the prisoners’ parole can be again considered.
Just completing the review of the position as it would otherwise generally exist, if I could take your Honours please to section 221, which deals with the membership of the parole board, and in particular I emphasise subsection (1). Your Honours will see – and also subsection (2) – that the board is to be composed of a number of people. It is a multidisciplinary deliberative body made up of more than just the president or the deputy president.
Can I then start with the consideration of the provisions that relate to no cooperation declarations for no body‑no parole prisoners. The part of the Act that deals with such prisoners and such declarations commences with section 175K, and that is the jurisdictional provision that confers upon the board the power to make a no cooperation declaration. Your Honours will see that it applies to no body‑no parole prisoners, and it is triggered either upon an application for exceptional circumstances parole being made – that is, section 176 – or the other form of parole, which is the form that we are presently concerned with, or subparagraph (b), the board decides to, on its own motion, make a declaration. That could happen at any time, from the moment the prisoner starts serving their sentence.
That is subject to the procedures dictated by section 175M, which provides for a report being obtained from the commissioner, and then a procedural fairness process under section 175N. So, it could not happen in practical terms instantly, but it could happen quite quickly – indeed, well before a prisoner reaches the minimum period determined by the sentencing court. Now, in terms of the definition – before I come to that, the matter about which the board must determine in order to make a declaration is specified by section 175L, and that specifies that if the board “is not satisfied” that a prisoner “has given satisfactory cooperation”, that the declaration may then be made.
Can I then take your Honours please to the relevant definitions. Firstly, section 175C, and your Honours will see that the first element of the definition is that:
the prisoner is serving a period of imprisonment for a homicide offence –
That term “homicide offence” is defined in Schedule 4. It is on page 463 of the reprint and 180 of the joint bundle, and that refers to various offences defined by the Criminal Code. One is interference with a corpse. The next is murder, manslaughter, accessory after the fact murder, conspiracy to murder, unlawful striking causing death, and various offences involving someone being a party to those principal offences.
Then, returning to the definition in section 175C, your Honours will see that it is satisfied in one of two circumstances. One of those is that part of:
(i)the body or remains of the victim . . . have not been located; or
(ii)because of an act or omission of the prisoner –
And then, if your Honours go to the more general definitions in section 175B, the term “cooperation” is defined, and it is defined as:
cooperation given by the prisoner—
(a)in the investigation of the homicide offence to identify the victim’s location; and
(b)before or after the prisoner was sentenced –
What we submit is that a premise of these provisions is that the prisoner in question is prima facie responsible to some extent for the fact that the victim – or their remains – cannot be located, and that their lack of satisfactory cooperation, including before they were sentenced or during the investigation of their offence, aggravates their offending and warrants more severe punishment.
We submit that is reflected in the terms of those sections, but it is also revealed in the explanatory memoranda that we have referred to in our written outline. The reference to that is in volume 2 of the special case, page 431, second‑last sentence.
JAGOT J: Sorry, what tab are you in?
MR SCOTT: I beg your pardon, your Honour.
JAGOT J: What tab are you in?
MR SCOTT: Excuse me, your Honour.
JAGOT J: Do not worry – are you in the second reading ‑ ‑ ‑
MR SCOTT: Yes, your Honour.
JAGOT J: You are, okay.
GAGELER CJ: Do you want us to look at it?
MR SCOTT: Yes, your Honour, if it pleases – the second‑last paragraph on that page, the first page of the second reading.
GORDON J: Is that the paragraph that reads:
The review report states that, a ‘punishment is lacking in retribution –
MR SCOTT: That is the one.
GORDON J: And what are we to take from that paragraph?
MR SCOTT: Well, it reflects what I have just said about the effect of these provisions being designed – or the premise of these provisions that an aggravating ‑ ‑ ‑
GORDON J: Page 431 of volume 2.
MR SCOTT: I am told it is tab 6, your Honour.
JAGOT J: Tab 6, did you say?
EDELMAN J: Tab 6 is the Corrective Services Act.
MR SCOTT: I am referring to the special case book, your Honour.
GLEESON J: It is SC‑5.
GAGELER CJ: Yes, we are talking about the special case book.
MR SCOTT: I am sorry.
GAGELER CJ: And the page again, please?
MR SCOTT: I beg your pardon, your Honour?
GAGELER CJ: What page?
GORDON J: Page 431.
MR SCOTT: That is so.
GAGELER CJ: Thank you.
MR SCOTT: Thank you, your Honour. And it is the passage that I – the second‑last paragraph on that page which I submit is consistent with what I have said is reflected in the provisions, which is that the lack of cooperation in identifying the victim’s location is a circumstance that aggravates and warrants greater punishment in respect of the offending conduct.
GORDON J: At page 444 of the same explanatory note, at the top of the page, it says:
As such, a primary focus of NBNP is to encourage cooperation from these prisoners by denying them parole release until such time as the Board is satisfied the prisoner has satisfactorily cooperated in identifying the location or last known location of the victim’s remains.
MR SCOTT: Yes, your Honour.
GORDON J: Is that more nuanced?
MR SCOTT: It is perhaps the other side of the same coin, because it encourages by punishing in the event that insufficient cooperation in the view of the board is not given.
GORDON J: I mean, it goes on to identify in the next paragraph on page 444 that which was reflected in a decision – of which the name presently escapes me – that things happen whereby you cannot actually locate the remains and it is not the fault of the prisoner, and it reflects that.
MR SCOTT: Yes, your Honour. Can I then take your Honours, please, to the provisions that deal with how a no cooperation declaration may be ended. They start with section 175R, and your Honours will see that provision entitles a prisoner to make an application for reconsideration of the declaration that has been made by the board. But, importantly, how that application is dealt with can be seen in section 175S, and it is principally dealt with by the president or the deputy president, not the board itself.
Your Honours will see the factors that the board must consider in deciding the application from subsection (3). Independent of such an application, there is also a power in section 175T for the president or deputy president to act on their own motion. Whether they do that or whether they grant an application under 175S, that then leads to what occurs under section 175U, which is to cause the board then to consider whether or not to lift the declaration.
But, importantly for our case, there is no right that the prisoner has to have the question of their satisfactory cooperation or otherwise be considered by the board at the time they reach the date that they would otherwise be eligible for parole by reason of the sentence. That is, the best they had is a hope that a discretion would be exercised in their favour by the president or deputy president to bring it back before the board at that time.
BEECH-JONES J: Could you say that again? What is the right you say they do not have?
MR SCOTT: To have the question of whether or not they may be released – sorry, I have conflated two propositions. They do not have the right to have the question of whether or not they have given satisfactory cooperation reconsidered by the board.
BEECH-JONES J: They do have the right to have it reconsidered by the president or deputy president?
MR SCOTT: Yes.
BEECH-JONES J: I see.
MR SCOTT: And certainly not by the board at the time they would otherwise be eligible for consideration for parole in accordance with the sentencing judge’s determination. That, we submit, is to be contrasted with the position prior to these provisions. For example, as at the reprint date of 27 September 2021, which is in the joint bundle, part B, volume 2, tab 7, there, the question of whether or not a prisoner’s cooperation was satisfactory or otherwise was under section 193A, to be considered at the time that their application is before the board, which would be ordinarily when they have reached their eligibility date, in accordance with the sentencing judge’s determination.
We submit that difference is material, given that the nature of the question of whether or not cooperation is satisfactory is a question of judgment and degree and dependent upon the circumstances as they exist at the time.
EDELMAN J: If the question of cooperation is viewed through the usual parole‑type lens of rehabilitation, prospects and so on, there is nothing really left for your case. You need to view the issue of cooperation through the lens of statements such as those at page 431 about retribution. Is that right?
MR SCOTT: That is probably right, your Honour, yes. But on that premise, your Honour, the effect of all of these provisions is that it may be just a matter of months after someone has been sentenced, a minimum period has been determined by the sentencing judge, and a view was formed by an officer of the Executive – by the Executive, in effect – that cooperation has been inadequate, which then triggers these provisions through the declaration. And the prisoner would then no longer have an entitlement to be considered in accordance with the determination of the sentencing court at the date that they would be so entitled.
One practical application of that would be, for example, where a prisoner pleads guilty. That is one way in which someone can be convicted for an offence of this kind. Ordinarily, the sentencing discretion takes account of the benefits to the administration of justice by the plea of guilty.
STEWARD J: You said entitlement to be considered for parole in accordance with the sentence. Is that right?
MR SCOTT: Yes, your Honour.
STEWARD J: The sentence does not give you an entitlement to parole; it is just the factum about which a parole regime for a State might turn upon.
MR SCOTT: Your Honour, the way I expressed myself may have been inelegant. I was not suggesting that there is an entitlement to parole.
STEWARD J: Yes, I see. Thank you.
GORDON J: It comes back to the passage I took you to in Chief Justice French’s reasoning at paragraph 36, which follows on from the questions Justice Steward just asked you. That is, you accept that it is open to the Executive to change the system.
MR SCOTT: Yes. But I submit that passage should be read with that sentence at the end of the preceding paragraph, which is ‑ ‑ ‑
STEWARD J: I think your case is: you can change the system, but not by way of additional punishment.
MR SCOTT: Yes, your Honour.
STEWARD J: That is your case.
MR SCOTT: That is it.
STEWARD J: Yes.
MR SCOTT: Thank you, your Honour.
EDELMAN J: Is the high point of that page 431?
MR SCOTT: Yes, your Honour.
EDELMAN J: Is there anything more than that extract from the report at page 431 which talks about retribution?
MR SCOTT: Well, not other than the provisions – the definitions of no body‑no parole prisoner and cooperation that I took ‑ ‑ ‑
EDELMAN J: But all of that is also equally consistent with the usual notions of rehabilitation.
MR SCOTT: Yes, potentially. Can I take your Honours now to the provision that deals with restricted prisoner declarations. Those commence at section 175E. That simply empowers the president, as opposed to the board itself, to make a declaration about a restricted prisoner. The term “restricted prisoner” is defined by section 175D. There is nothing particularly important for my argument about that definition, it is sufficient to note that subparagraph (b) seems to capture my client.
Section 175F operates similarly to the equivalent provision in respect of no cooperation declarations, that is, the trigger which leads to a restricted prisoner declaration is the giving of a report by the chief executive. That may be:
at any time during a . . . prisoner’s period of imprisonment –
or it must be given:
If the chief executive is given a notice under section 193AA(2) –
That section requires a notice to be given by the board to the chief executive in the event of an application for parole by a restricted prisoner. That, by the way, is why inevitably the question of the validity of these provisions is impacted by the validity of the no cooperation declaration provisions, because if my client is not subject to a no cooperation declaration, he is then potentially – he is going to automatically be subject to these provisions, at least consideration of whether or not such a declaration should be made, once he makes application for parole.
STEWARD J: But that does not deny, though, that the president will retain a discretion under 175E about whether to make the declaration.
MR SCOTT: Yes, your Honour.
STEWARD J: So, what is the answer to the Solicitor‑General for Victoria’s point that it will end up giving you an advisory opinion?
MR SCOTT: It will not be an advisory opinion, your Honour, because automatically – inevitably – my client is going to be subject to ‑ ‑ ‑
STEWARD J: It cannot be inevitable or inexorable. It might be likely.
MR SCOTT: Well, what I am saying would be inevitable is that he will be subject to the process for determination. So, to apply the analogy ‑ ‑ ‑
STEWARD J: I see.
MR SCOTT: Yes, thank you, your Honour. The process under 175F leads to a report being given to the president under section 175G, and then the decision made by the president in section 175H. The question that the president considers in order to make a declaration is whether or not:
it is in the public interest to do so.
Of course, that is a very wide expression, but then there are certain mandatory features that must be considered, as specified by subsection (2). We emphasise, for our argument, the factors specified in subparagraphs (a) and (c). Subparagraph (a) would appear to go to the gravity of the offending conduct, which is really a punitive concept.
BEECH-JONES J: I am sorry, what section are you at?
MR SCOTT: Section 175H(2)(a), your Honour.
BEECH-JONES J: Thank you.
MR SCOTT: Then, also, if your Honours go to subparagraph (c) of that same subsection, which talks about:
the likely effect that the prisoner’s release on parole may have on an eligible person or a victim –
the term “victim” is defined in subsection (8) by reference to section 5 of the Victims of Crime Assistance Act. That is not in the bundle, and we can provide a copy of the section to the Court, but the effect of it is that it embraces people that would be beyond just, for example, the deceased, it would people who have been harmed by the offending conduct in some way, or family members.
Similarly, the term “eligible person” is defined in Schedule 4 as a person who is on the eligible persons register. And in respect of a homicide offence, that would be as specified in section 323, which includes family members. So, that is what the concept of eligible persons or victims embraces in that subsection, but what it speaks of is the “effect that the prisoner’s release on parole” will have on those persons which seems, we submit, to speak to those persons’ interests in the punishment of the offender by retaining that person in prison.
BEECH-JONES J: Or is it not just their potential safety or their mental state? In order words, is that not looking to an assessment of future harm?
MR SCOTT: Well, that may be, yes, your Honour. But that is, I would submit, a very fine distinction from, for example, the interests that a victim might have in punishment that would be embraced in the sentencing process ordinarily, bearing in mind, of course, what I said earlier, that these declarations can be made a matter of months after the sentencing process is complete.
The final point we make is with respect to subparagraph (b). It is put against us, I think, that that embraces a protective factor rather than a punitive one. But what we simply say about that, your Honours, is, firstly, if it were genuinely protective, it would not be just limited to the bare risk. It would have regard to, for example, the prospects that that risk could be reduced by measures that would or could be imposed on the prisoner’s release on parole.
The Court of Appeal in Neyens, which we have referred to and which the Solicitor‑General for Queensland has identified and rejected the proposition that there is any requirement that those sorts of considerations must be considered – they may be, but not must. And the other thing, too, which also comes from Neyens, but which we submit is apparent from the section itself, is predominant weight could be given to the factors in subparagraphs (a) and (c) and little weight could be given to the factor in subparagraph (b) such that the prisoner could be regarded as very little risk at all, but because of how serious their offending is and the effect that their release will have on the victims, it gives rise to a conclusion that it is in the public interest that the declaration is made.
Finally, in terms of the duration of a declaration, could I just draw your Honours’ attention to section 175I (3). Your Honours can see that a declaration may be up to 10 years in length. Indeed, there is no limit on how many declarations may be made. So, the effect of this scheme is that by exercise of discretion, very wide discretion placed on the president, the prisoner may never be considered for release on parole even after they have reached the date determined by the sentencing judge.
EDELMAN J: Do you accept that a decision as to whether or not to grant parole generally is not a decision that is punitive?
MR SCOTT: I am sorry, your Honour?
EDELMAN J: Do you accept that a decision, generally, about whether to grant parole is not a decision that is characterised as punitive?
MR SCOTT: Yes, I accept that, your Honour.
EDELMAN J: And that the considerations – the broad public interest considerations in relation to parole – could encompass any of the same considerations as in section 175H(2)(a), (b) and (c)?
MR SCOTT: Yes, your Honour, yes. And in the end, our case – like it does with respect to no cooperation declarations – emphasises that those considerations are not being considered by the body that has been vested with the responsibility of deciding applications for parole at the time when they would otherwise be entitled to that consideration by force of the decision of the sentencing judge.
EDELMAN J: The time for consideration of a parole could easily be changed by legislation; that would not make it punitive. But your case is that the way in which this regime works is motivated by, particularly, considerations of retribution.
MR SCOTT: Yes, your Honour, that is my case. Your Honours, the focus of my submissions has really been on what has been described by the Solicitor‑General of Queensland as the minor premise of my argument. I did not propose to develop orally what we have said in respect to the major premise unless it would be of any assistance to the Court.
Otherwise, those were my submissions.
GAGELER CJ: Thank you, Mr Scott. Mr Solicitor.
MR DEL VILLAR: Your Honours, this Court’s decisions in Crump, Knight and Minogue make it abundantly clear that a non‑parole period set by a court does not give a prisoner a right to be released on parole upon the expiry of that non‑parole period. At the heart of my learned friend’s case is a claim that the order made by Justice Dutney of the Supreme Court of Queensland operated, once the non‑parole period expired, to require the Executive to consider the plaintiff’s application for parole. Indeed, it seems to be more subtle than that. It operated to require the parole board, rather than aspects of the Executive, to consider the plaintiff’s application for parole. Now, on the plaintiff’s case, as we understand it, the legislature can enact the law ‑ ‑ ‑
EDELMAN J: Mr Solicitor, I do not think your proposition could be as absolute as that, could it? If there were legislation which empowered a parole board to alter a non‑parole period based upon its consideration that the sentence that was given was not sufficiently harsh for the offence, that might start to look very much like an order which is motivated by a purpose of being entirely punitive.
MR DEL VILLAR: That is a world away from this case, your Honour, because the sentence here is as harsh as one can find – imprisonment for life.
EDELMAN J: Absolutely. But all I am saying is that your proposition cannot be as absolute as that – nothing in Knight or Minogue suggested that it could never be a punitive purpose to have any legislation amending a parole period.
MR DEL VILLAR: Your Honour, our principal submission is that those cases establish that one does not get an intersection with the judicial power because the non‑parole period simply sets a period of time within which the person must not be released. And so, it might be possible to conceive of some cases, possibly, in which there would be an intersection, but those cases stand for the proposition that, at least in general, perhaps in all but the rarest cases, there would be no such intersection and, in my submission, this is clearly a case where there is no such intersection.
Your Honours, the plaintiff’s case, as we apprehend it, is that the legislature can enact a law – like the laws in Crump, Knight and Minogue – which requires a parole board to refuse a prisoner’s application for parole. But what it cannot do is to prevent the prisoner from applying for parole in the first place, because that would apparently interfere with the non‑parole period.
That proposition, in our submission, is just wrong. There is no real distinction between a law which requires an application for parole to be refused and a law which prevents an application from being made or governs the eligibility for parole in such a way as to require that application not to be made. In either case, the laws can be characterised as laws which impose conditions on the grant of parole.
As explained by this Court in Crump, Knight and Minogue, to which I will take your Honours shortly, laws which alter the conditions for the grant of parole do not intersect with judicial orders setting minimum non‑parole periods, and there is nothing legislative scheme to which your Honours were taken and to which I will again take your Honours which would enable those authorities to be distinguished here.
I propose to demonstrate that in this way. First, I will address what my learned friend described as the minor premise, which is that the order made by Justice Dutney has been interfered with by sections 175L and 175E, which respectively provide for no cooperation declarations and restricted prisoner declarations. That is the crux of the case: if my learned friend does not succeed on the minor premise, the case is over, and I think that is common ground.
I will then very briefly address the major premise. Finally, I will not need to deal with the consequences if the Court were to uphold the plaintiff’s challenge to 175L, because it seems to be common ground between the parties that the previous version of the legislation would revive, but I am happy to deal with that if the Court has some issues about it.
BEECH‑JONES J: Sorry, is your response to the major premise that any interference with the non‑parole period does not infringe judicial power or Chapter III?
MR DEL VILLAR: We would say that because the minor premise is never made out, the major premise just does not have to be decided.
BEECH‑JONES J: But you said you are going to address it, so I am just ‑ ‑ ‑
MR DEL VILLAR: I am just going to address the premise that, somehow or another, one can never have a situation where the legal effect of an order can be affected by legislation, other than through an appeal mechanism. That seems to be our understanding of the major premise.
Your Honours, can I deal with the minor premise in this way. Your Honours are aware of the issues here. A no cooperation declaration was made in respect of the plaintiff under section 175L. Your Honours will see that no cooperation declaration in the special case book at volume 1, page 26. The decision to make that declaration is reported behind tab 8 in the special case book, which your Honours will find in volume 2 of the special case book, at page 502.
While that no cooperation declaration is in force, the plaintiff cannot apply for parole. That is as a result of section 180(2)(d). Your Honours have been taken to provisions for reconsideration of the no cooperation declaration. I am not going to take your Honours to those again. Those are described in paragraphs 14 to 17 of our written submissions.
Can I then take your Honours to the actual order made by his Honour Justice Dutney in 2002. Your Honours will find it in the special case book in volume 1, at page 32. Your Honours will see that the order said:
On both counts –
Imprisonment for life.
Not to be released before serving twenty (20) years of the sentence unless released sooner under exceptional circumstances parole –
That order was made in accordance with section 305 of the Criminal Code to which your Honours were taken. The point we would simply make is there is nothing on the face of the order and there is nothing in section 305 which purported to confer a right on a prisoner to apply for parole or to deal with the Executive’s power to consider such an application.
At the time the order was made, the effect to be given to that order depended on the relevant statutory scheme for parole. Your Honours will find in the Corrective Services Act 2000 – and the relevant Act can be found in A2 of the joint bundle of authorities, tab 4, and the relevant pages begin at page 116.
GORDON J: I do not think that is the right ‑ ‑ ‑
MR DEL VILLAR: Sorry, your Honours, I have given your Honours the wrong page reference. My apologies. It should be page 232 of the joint bundle.
EDELMAN J: Tab 6.
MR DEL VILLAR: Tab 6. What is made clear, your Honours, is that there it deals with who may apply for post‑prison community based release orders – effectively parole, as it is now known; when the order starts; and section 136(1) then provided that:
the Queensland board –
that is, the Queensland Community Corrections Board, had power to:
hear and decide applications for –
parole in those circumstances. It can be seen from the form of the parole legislation as in force then that Justice Dutney’s order was indeed a factum or the criterion by reference to which the scheme operated, but the sentence itself did not purport to deal with these matters. And that continues to be the case.
Your Honours will see in section 180 of the Corrective Services Act 2006, to which your Honours have been taken – and your Honours need not go to it unless your Honours wish to – that the prisoner’s ability to apply for parole is there dealt with and the power of the parole board to hear and decide an application is now dealt with in sections 193 and related provisions.
So, the point that we simply get out of this, your Honours, is a simple one, which is Justice Dutney’s order on its face, having regard to the Act under which it was made, says nothing about Mr Cherry’s potential to release on parole, his ability to apply for parole, or the power of the Executive to consider any application for parole. Those things were originally dealt with in the Corrective Services Act2000 and, as such, they were liable to be altered by the legislature, and that is what has occurred.
In these respects, the order made by Justice Dutney is of the same character as the judicial order setting non‑parole periods considered in Crump, Knight and Minogue. If I could ask your Honours to go to Crump, which your Honours will find reported in volume 247 of the Commonwealth Law Reports, and your Honours will find the reference in the joint bundle at tab 18 in part C, volume 3.
Your Honours may recall that Crump was concerned with a non‑parole period which had been set, not at the time that Mr Crump was originally sentenced in 1974 but more than 20 years later, following legislative changes which permitted to him to apply to the court for a minimum term. In 1997, he was resentenced by Justice McInerney of the New South Wales Supreme Court, who set a minimum term of 30 years. Under the legislative scheme then in place, a consequence of that order was that he was eligible for parole in 2003. But before 2003, in 2001 there was inserted into the Crimes (Administration of Sentences) Act a provision which had the effect of preventing him from obtaining parole unless he was dying or seriously incapacitated. Mr Crump challenged that legislation on the basis that this amounted to an interference with the judicial order made by Justice McInerney.
If I could ask your Honours to turn to paragraph 20 at page 15 of the report, which is found at page 620 of the joint bundle. That is a description about what happened as a result of the 1997 Act. If your Honours could then turn – the argument that Mr Crump made, which your Honours will see at paragraph 20, is that the order made by Justice McInerney had a continuing effect that when he became eligible for parole in 2003, he would have some prospect of being released on parole, and he was entitled to the parole board’s consideration of whether to release him on parole. The argument was that section 154A altered that continuing effect, and that submission was unanimously rejected.
If I could ask your Honours to turn to paragraph 35 in his Honour Chief Justice French’s judgment, and paragraphs 35 and 36, in my submission, are at the core of his Honour’s reasoning. The point that his Honour makes at paragraph 35 is that there is a distinction between the legal effect of the judicial order setting the minimum period, and the statutory consequences attached to that order.
His Honour makes it clear that Mr Crump’s eligibility for parole, and the board’s duty to consider his application, was statutory consequences able to be changed by the legislature, and they formed no part of the legal effect of the order itself, and to alter them did not alter the judicial order. Consequently, as is pointed out by his Honour at paragraph 36, the second sentence:
The power of the executive government of a State to order a prisoner’s release on licence or parole or in the exercise of the prerogative may be broadened or constrained or even abolished by the legislature of the State.
BEECH-JONES J: This might be a matter of form, but if the former legislation said henceforth his minimum term is to be taken as determined by the Court, is to be taken as 40 years instead of 30 years, would that be a problem?
MR DEL VILLAR: That might raise the issue about an attempt to actually change the minimum term, but subject to that kind of example, it is very difficult to see how it is that the statutory consequences attached to the minimum term could not be altered.
EDELMAN J: Which come back, really, to the question I asked you earlier, which is if the precise language that Justice Beech‑Jones put to you is not used but the purpose is to obtain legislation that had exactly that effect, it is very hard to see that the form that the legislation takes would make the legislation valid.
MR DEL VILLAR: If one is talking about a purpose of actually changing the minimum term, in my submission it is very hard to gain such a purpose unless one actually finds it in the words of the legislation, because there is a clear line of authorities, and this case is one of them, which indicates one can change the statutory consequences attaching to an order.
EDELMAN J: That is maybe why the heart of the case against you comes down to that passage from the report which says the whole purpose of this may be retribution, or the way it is put is that the purpose of the whole thing is retribution.
MR DEL VILLAR: I will be dealing with that, your Honour. While I am dealing with these passages in Chief Justice French’s judgment, could I make two further points. The first is, his Honour at paragraph 36, as your Honour Justice Gordon pointed out, makes it abundantly clear that schemes for parole and remission are liable to change. There is no suggestion that the sentence somehow freezes the scheme in place. So, my learned friend’s attempt to rely on, in the end of paragraph 34, the sentence about “under the statutory scheme then in place”, in my submission, cannot be given particular credence, given what his Honour says about the reality of parole systems changing.
Can I ask your Honours then to turn to paragraph 60 in that judgment, which is the joint judgment of Justices Gummow, Hayne, Crennan, Kiefel and Bell, and your Honours will find that at page 26 of the report, and it is page 631 of the joint bundle. Again, this is where their Honours are dealing with the argument about altering the judicial order, and they reject that argument. They point out that as a matter of:
practical reality . . . sentencing judges –
who face:
the prospect of legislative and administrative changes in parole systems.
And, importantly, they say:
As a matter neither of form nor substance did the sentencing determination by McInerney J create any right or entitlement in the plaintiff to his release on parole. In that regard, the determination itself had no operative effect. Rather it constituted a factum by reference to which the parole system . . . operated.
Their Honours also point out that the legislation, which is section 154:
qualified the jurisdictional facts –
necessary:
to enliven the power of the Parole Authority –
But none of that affected its validity. Justice Heydon reasoned to similar effect at paragraph 70 to 71. In our submission, Crump is enough for us to have this case dismissed because, on this reasoning, a judicial order setting a non‑parole period does not have the legal effect for which Mr Cherry contends.
But Crump has, of course, been followed in other cases of this Court, Knight v Victoria being the first and Minogue being the second, and I will take your Honours briefly to those. Knight v Victoria is summarised in our written submissions at paragraphs 20 to 21. I will give your Honours the reference to Knight which your Honours will find in – it is reported at 261 CLR 306, and your Honours will find Knight at tab 28 in part C of the bundle. It starts at page 1251.
Now, that was a case in which your Honours are probably aware that Mr Knight challenged Victorian legislation which applied to him by name and provided that the parole board could grant him parole only if it was satisfied that he was in imminent danger of dying or seriously incapacitated. If I could ask your Honours to turn to page 323 of the report, if I could ask your Honours to read paragraph 27 and, in particular, the second sentence:
The minimum term of those sentences fixed by Hampel J . . . did no more than to set a period during which Mr Knight was not to be eligible to be released on parole.
At paragraph 28, the same point is made even more emphatically:
Whether or not Mr Knight would be released on parole . . . was simply outside the scope of the exercise of judicial power constituted by imposition of the sentences.
Paragraph 29 points out:
By making it more difficult for Mr Knight to obtain a parole order . . . s 74AA –
Which was the impugn provision:
does nothing to contradict the minimum term that was fixed. Nor does it make the sentences of life imprisonment “more punitive or burdensome to liberty”.
That is something I will come back to again because it forms a significant part of my learned friend’s argument. Now, there is nothing in those paragraphs which would support the proposition that, had the legislature instead decided to make Mr Knight ineligible to apply for parole, a different outcome would have resulted.
Can I ask your Honours now to turn to Minogue. Your Honours will find that at tab 34, part C of the joint bundle of authorities, and it is reported at 268 CLR 1. If I could ask your Honours to turn to page 1513 of the joint bundle – if your Honours will bear with me for a moment – which your Honours will find at page – sorry, your Honour. If I could ask your Honours to turn to page 3 of the report, which your Honours will find at page 1515 of the joint bundle. There is recorded the argument for Dr Minogue. About nine lines from the bottom of that page, your Honours, you will see that the plaintiff sought to distinguish Crump and Knight on the basis that:
In substance and effect, they render the plaintiff ineligible for parole for a further indefinite period beyond the minimum term –
Then there was a statement about they:
qualify the jurisdictional facts which must apply in order to enliven the power of the parole authority –
Over the page, the argument was put that:
the substance and effect of s 74AB –
That being the impugned provision, was:
to extend the plaintiff’s non‑parole period or impose an additional period of ineligibility for parole.
An attempt was made to reopen Crump and Knight which was rejected. It was said, about 12 lines down on page 4, that:
The legal effect of fixing a minimum term of imprisonment is to enliven an executive power to release on parole a prisoner who would otherwise be required to serve the head sentence.
These are arguments that are strongly redolent of the argument that my learned friend is putting today. Contrary to my learned friend’s submissions, that argument was not rejected because under the scheme Dr Minogue remained entitled to make a futile application for parole. The argument was rejected because it attributed to non‑parole orders a legal effect that they did not have. That can be seen from the joint reasons.
If I could ask your Honours to turn to paragraph 13 of the joint reasons, which your Honours will find on page 15 of the report and page 1527 of the joint bundle. Paragraph 13 there describes the argument that was made on behalf of Dr Minogue. The first of the arguments was, well, it extended the non‑parole period, and the second was that it increased the severity of the sentence. That was rejected on the basis that the section in question did not do those things and that the contentions were contrary to several long‑standing propositions. And in paragraph 14, it was pointed out by their Honours Chief Justice Kiefel and Justices Bell, Keane, Nettle and Gordon that:
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 . . . government –
Then it was pointed out in paragraph 15. Again, building on that, it was said 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 –
And what was said in Crump is expressly picked up. Paragraph 16:
The fixing of the non‑parole period of 28 years said nothing about whether the plaintiff would be release on parole . . . It left his life sentence unaffected –
It pointed out:
the plaintiff has no right to be released –
And we would rely on this 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.
That, in my learned submission, is something that my learned friend has not adequately dealt with.
GORDON J: And you rely upon the next sentence, “Put in different terms”?
MR DEL VILLAR: Exactly, your Honours. We do rely upon that as well. At paragraph 17, the joint judgment makes this point, which is, again:
the power to release a prisoner . . . is a matter for the executive, subject to the statutory scheme and administrative policies applicable to the exercise –
And that:
scheme, as well as practice and policies . . . may validly change from time to time.
In my submission, that means, when one has regard to these provisions, one needs to reject the argument set out in my learned friend’s written submissions at paragraphs 38 to 41, and in his amended reply at paragraph 16, that Minogue must be understood as somehow turning on Dr Minogue’s continued eligibility to apply to and be considered for parole.
My learned friends seek to rely upon a sentence in paragraph 18 of the joint judgment, that sentence being the final sentence of that paragraph, which says:
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 . . . have been severely constrained.
That sentence cannot be read, in our submission, as indicating that Dr Minogue’s ongoing statutory eligibility for parole was central to the Court’s decision. First, to read it in such a way would contradict what is said in paragraph 15, in which their Honours explain that:
eligibility for release on parole is not part of the sentencing . . . determination.
Second, such a reading would be inconsistent with reasons in Knight, at paragraph 27, to which I have taken the Court, which make it clear that a non‑parole period does no more than to set the period within which the prisoner may not be released on parole.
Third, it introduces a principle which would effectively ignore the substantive and practical operation of legislation in favour of form, and on the plaintiff’s argument, Dr Minogue would have succeeded if section 74AA had been drafted to deny him the capacity to apply for parole until he was dying or seriously incapacitated, whereas in its current form – depriving him of meaningful release on parole – it was fine.
In my submission, the better reading of paragraph 18 is that their Honours were simply pointing out that because the non‑parole period had expired, Dr Minogue remained eligible in the sense that there was no judicial order that prevented him or that could be contradicted if he were released on parole. Having regard to those authorities, once the legal operation of a non‑parole period is understood, changes to the conditions on which parole is granted cannot be said to alter a sentence.
Leaving aside the extreme examples which your Honour Justice Beech‑Jones and your Honour Justice Edelman have put to me, it simply cannot be said that changes to the conditions on which parole would be granted would alter the sentence as a legal or practical matter and, as Chief Justice French explained in Crump, a statutory regime may be abolished, or restricted, or broadened without interfering with the sentence.
And, your Honour, it is worth pointing out that the laws in Crump, Knight and Minogue were about as restrictive as one could imagine. Your Honour the Chief Justice pointed out in paragraphs 30 to 32 of your Honour’s reasons in Minogue that:
the purpose and practical effect –
was to subject Dr Minogue:
to a life without meaningful prospect of parole –
but that did not change the fact there was no interference with judicial power. The no cooperation declaration here made in respect of Mr Cherry is not as restrictive as the legislation that was enacted in Minogue. It provides that the Executive decision not to consider Mr Cherry for parole, in effect, cannot be exercised unless – there can be no Executive decision to consider granting him to parole unless there has been evidence of cooperation.
Now, Mr Cherry is thereby left with an avenue to restore to himself the ability to apply on parole and so, just as in Minogue and the other cases, he remains eligible for parole in the relevant sense, because there is no court order that would prevent him from being released from prison on parole. It is simply that the circumstances in which parole may be granted by the Executive have been severely constrained.
It is of no consequence, in our submission, that reconsideration of a no cooperation declaration is left in the hands of the president or deputy president. The president or deputy president are both part of the Executive, as is the parole board, and your Honours are aware from the statements in the cases that the legislative scheme for parole can change. Your Honours, that is enough, in our submission, to demonstrate that the plaintiff’s case ‑ ‑ ‑
GORDON J: Can I just – you said, then, the president making a no cooperation – it is not the president that makes the no cooperation declaration.
MR DEL VILLAR: I was speaking about reconsideration, your Honour, sorry.
GORDON J: I see. Thank you.
MR DEL VILLAR: Your Honours, that is enough to demonstrate that the plaintiff’s case must fail in respect of section 175L, which is dealing with the no cooperation declarations.
The plaintiff seeks to rely upon certain observations made by your Honour Justice Edelman in Minogue to the effect that a law which has a punitive purpose and a practical effect of altering a sentence may be invalid. We do not read your Honour as having decided it necessarily would be invalid. That reliance is misplaced, for the reasons we have set out in our written submissions at paragraphs 32 to 34 and, without seeking to repeat those submissions, we would simply point out that the denial of parole, which is a mercy or a privilege, does not make a sentence “more punitive or burdensome to liberty”. That can be found at Knight at paragraph 29, and is also found in ‑ ‑ ‑
EDELMAN J: You do not go as far, though, whether it be the extreme examples or not, to say that the legislative amendment to require denial of parole or to permit denial of parole could never be punitive, even if motivated by – or perhaps solely by – purposes of retribution?
MR DEL VILLAR: Your Honour, I do not want to say never, but at the same time, the circumstances in which such a thing could be punitive are hard to imagine.
EDELMAN J: Well, take the recent case in YBFZ. It is different circumstances, it is not about parole, but it is about something that could easily be attached as a condition of parole.
MR DEL VILLAR: That would pose no difficulty whatever, in my submission. Your Honours, even if one were to accept the premise that a punitive purpose may raise a constitutional difficulty, this scheme fairly cannot be construed as having such a purpose.
We have elaborated on that at paragraphs 41 to 49 of our written submissions. We would simply make these points. First, to deny a prisoner the ability to apply for parole unless the prisoner cooperates with authorities in relation to locating a victim’s body is consistent with the ordinary purposes of granting parole and rewarding good behaviour. Second, the purpose of the scheme is:
“to recover for the victim’s family all of the victim’s body/remains”.
That was recognised by the Queensland Court of Appeal in the case of Armitage v Parole Board Queensland, which your Honours will find at tab 38 of the joint bundle, and the relevant pages are 1657 and 1659, paragraphs [34] and [43]. That purpose is evident from the provisions, in particular, section 175P(4), which your Honours can find in volume 1 of the authorities bundle, it is tab 4, page 97.
GAGELER CJ: Are you wanting us to turn to that?
MR DEL VILLAR: Yes, please, your Honours.
STEWARD J: I am sorry, Mr Solicitor, what was the reference, again?
MR DEL VILLAR: It is in section 175P of the Corrective Services Act 2006, which should be found at page 96 – that is where the provision begins – of the joint bundle. It is at tab 4, volume 1 of the legislative authorities.
BEECH-JONES J: Is that to the effect of that if the body is found ‑ ‑ ‑
MR DEL VILLAR: Exactly.
BEECH-JONES J: ‑ ‑ ‑ you stop being a no body‑no parole prisoner by declaration?
MR DEL VILLAR: That is the effect of it.
GORDON J: Even without assistance from the person who is in prison?
MR DEL VILLAR: Even without assistance. That, in my submission, makes it very hard to see how it is that this has the purpose of punishing the prisoner and aggravating the sentence.
BEECH-JONES J: Mr Solicitor, when you are done, can I ask you about 175H(2)? Is that taking you out of your argument?
MR DEL VILLAR: Yes, your Honour.
BEECH-JONES J: What of this concept of “public interest” in there? Or to put it another way, when the president takes into account:
the nature, seriousness and circumstances of the offence –
to consider the public interest, in what way do they do that? Is it an assessment of saying, your crime was so heinous, or is it assessed towards taking the circumstances of the offence into account as an assessment of future risks, the harms and effects?
MR DEL VILLAR: In our submission, it would be the latter because, as I will – this is dealing with the restricted prisoner declarations ‑ ‑ ‑
BEECH-JONES J: I understand that.
MR DEL VILLAR: ‑ ‑ ‑ in our submission, the evident purpose of these provisions is to prevent re‑traumatisation and to deal with community harm. That is the purpose.
GLEESON J: Mr Solicitor, a law which said “life means life” – which was an alteration to the previous system – that could easily be understood as having a punitive purpose, could it not?
MR DEL VILLAR: There are – yes, it could.
GLEESON J: Would that affect the validity of that law?
MR DEL VILLAR: In my submission, no.
GLEESON J: And why would that be?
MR DEL VILLAR: If the sentence is life and legislation makes it quite clear – as legislation in New South Wales did, the sort of legislation considered in Crump – that a person is not to be released on parole, then there has been no change to the sentence whatever. It is not making it more punitive at all. It is simply giving effect ‑ ‑ ‑
GLEESON J: It is not altering the punishment ‑ ‑ ‑
MR DEL VILLAR: It is not altering the punishment.
GLEESON J: ‑ ‑ ‑ but it clearly has a punitive purpose.
MR DEL VILLAR: That is right. That is why it is difficult to imagine many circumstances in which the sorts of considerations that have been ventilated would be relevant.
Your Honours, we understand that the plaintiff seeks to establish that there is an impermissible purpose here by reliance on what was in the extrinsic materials and also because of an example which is given, in particular at paragraph 44 and 18 of the written submissions for the plaintiff, that there will be some prisoners who feel that they cannot cooperate because, for instance, they might be at risk of being murdered, or so on. Now, our point is a simple one. The fact that in some limited circumstances, some prisoners may find themselves in a dilemma about whether to cooperate, does not mean that one can infer that the purpose of the provisions is punitive.
It cannot be the case that if a prisoner faces a dilemma in deciding whether to cooperate, for reasons that the Executive is simply not privy to, the scheme therefore has a punitive design. There is nothing to suggest that any of the plaintiff’s hypotheticals are other than hypothetical in this respect. Your Honours will be aware of admonitions in some of the cases about deciding constitutional cases by reference to distorting possibilities and extreme examples, and we would call those in aid.
Finally, the plaintiff submits the provisions have a punitive purpose because they may prevent a person wrongly convicted from obtaining parole. The short answer to that, in my submission, is the person has been convicted; that conviction has been upheld on appeal; and the parole system is not a means of addressing miscarriages of justice, those are dealt with through other mechanisms.
Your Honours, can I now turn to restricted prisoner declarations ‑ ‑ ‑
GAGELER CJ: I think as you do that, we will take the morning adjournment. Are we still on track for your submissions to finish within one hour and 10 minutes, as you previously indicated?
MR DEL VILLAR: I fully expect to be finished before long, your Honour.
GAGELER CJ: Yes, thank you.
MR DEL VILLAR: I do not expect to go over the time.
GAGELER CJ: Very good. The Court will take the morning adjournment.
AT 11.22 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.34 AM:
MR DEL VILLAR: Your Honours, I had just begun dealing with restricted prisoner declarations. The plaintiff is a restricted prisoner, and the president – it has been made clear by the tour that my learned friend took your through the provisions – may make a restricted prisoner declaration about him at any time, irrespective of whether there is a no cooperation declaration that is in force. One can see that at sections 175E and 175F. In our submission, the question of the validity of section 175E is readily resolved in this case.
GAGELER CJ: You say it arises, or not?
MR DEL VILLAR: Your Honours, I think we would put it this way: our position at the moment is that it is difficult to see why Mr Cherry would not have an interest in having the matter resolved, given that if he were to succeed in his challenge to no cooperation declaration, he would immediately fall under the provisions of the restricted prisoner declaration regime.
GAGELER CJ: And if he were not to succeed?
MR DEL VILLAR: Then, in my submission, the Court would have effectively answered that question against him.
GORDON J: Answered what, to that question?
MR DEL VILLAR: The validity of 175E. And it would have done so because it would have rejected his principal submission that, somehow, there was an interference with a court order. That reasoning, in my submission, would compel the rejection of his challenge to 175E.
GAGELER CJ: They are different questions, though, are they not?
MR DEL VILLAR: They are. They are. And if it should turn out to be the case that the Court does not wish to deal with 175E or it is inappropriate to do so, then we will simply deal with that question later, if there is a challenge to it later.
BEECH‑JONES J: Mr Solicitor, can you be both a no body‑no parole prisoner and a restricted prisoner?
MR DEL VILLAR: Yes.
BEECH‑JONES J: And it would be open for him at any time to seek a declaration that he is not a restricted prisoner on the basis that the restricted prisoner provisions are invalid?
MR DEL VILLAR: Sorry, I did not quite hear your Honour.
BEECH‑JONES J: It would be open to him, at any point, to seek a declaration he is not a restricted prisoner on the basis that those provisions are invalid?
MR DEL VILLAR: Yes, it would. Your Honours, I think I was saying that the validity of section 175E is readily resolved. If the Court were to accept our submission to the effect that the non‑parole period imposed by Justice Dutney did no more than specify a period during which Mr Cherry could not be released, then his challenge to both 175L and to 175E, in our submission, must fail.
But even if the Court does not accept that, there are other reasons why the challenge to 175E must be rejected. It seems to have been – my learned friend did not refer to the fact that Mr Cherry remains able to apply for parole under 175E. It is simply that Mr Cherry can only obtain parole if he can demonstrate that he is seriously incapacitated or death is imminent; exactly the same restrictions on obtaining parole that were in Crump, Knight and Minogue. In my submission, that is enough to demonstrate that, on that alternative ground, the challenge has no merit.
Now, my learned friend’s arguments seem to be focusing on the fact that somehow or another, by putting the power to make the restricted prisoner declaration to the president as opposed to leaving it to the board, there was a fundamental difference, but that has been dealt with by the fact that the authorities indicate that parole systems can change and, in my submission, there could hardly be a constitutionally significant distinction between the powers of the president and the powers of the board. These are not things which are dealt with at all in the sentence of Justice Dutney, they are things about which legislatures can and will legislate from time to time. In fact, the multidisciplinary nature of the parole board, which my learned friend referred to, is a fairly recent phenomenon. That is something that changed as a result of the report in 2016.
So, in my submission, there simply is no way of distinguishing Crump, Knight and Minogue and on that basis again a challenge to the restricted prisoner provisions must fail. But even if that is not accepted, the basis for saying that the power is punitive in its purpose cannot be made out. Your Honours have been taken to section 175H. Could I ask your Honours to turn to that again. Your Honours will find it at pages 90 to 91 of volume 1 of the legislation bundle, at tab 4.
My learned friend’s argument seems to be that, when one has regard to section 175H(2)(a) and (c), then one infers that the purpose is punitive. In my submission, that just does not follow at all. It is perfectly possible to read those provisions as being concerned rather with matters that have to normally into account by the parole board and matters that deal with the risk that the prisoner poses, the reaction in the community, and so on. That does not make the provision punitive.
Can I also – just to add to that, your Honours – take your Honours to the judgment of her Honour Chief Justice Bowskill in the case of Neyens v President of the Parole Board Queensland. Your Honours should find that in volume 6 of the case authorities ‑ ‑ ‑
GLEESON J: This is tab 42?
MR DEL VILLAR: Yes, your Honour. In fact, could I ask your Honours to turn – and this is at page 1766 of the joint bundle – to paragraphs [17] and [18] of her Honour’s reasons. Your Honours will see at paragraph [17], her Honour identifies from the explanatory notes and extrinsic materials what the policy objective of these provisions is:
to limit re‑traumatisation of victims’ families and friends by introducing a new framework for parole decisions about a life sentenced prisoner who has committed multiple murders –
et cetera.
GLEESON J: But again, even if this provision were punitive, or even if it had a punitive aspect, that would not necessarily signify invalidity.
MR DEL VILLAR: Your Honour, I am in complete agreement with that. I am dealing with an alternative argument but, your Honour, we agree.
EDELMAN J: You do not say that the meaning of punishment in Chapter III has a different meaning in the context of, say, the parole regime from the meaning it has in relation to the Migration Act, do you?
MR DEL VILLAR: We are simply saying that punishment is not what this is concerned with.
EDELMAN J: Yes, I understand.
MR DEL VILLAR: As your Honours will see from the extract of the explanatory notes at paragraph [18] of her Honour’s judgment, it makes it fairly clear this is not designed to punish prisoners, it is to prevent certain things happening – reducing:
re‑traumatisation of victims’ families –
being probably the main thing, community protection being another. Her Honour’s analysis of these provisions is accepted and endorsed by the Court of Appeal in its decision in Neyens v President of the Parole Board, which your Honours will find at tab 43 of the bundle – in particular, paragraphs [25](f) and [30] and [32] where his Honour Justice Bond endorses the purpose that Justice Bowskill found here. Her Honour had found that the discretion under section 175H(2) is to be done:
for the express purpose of limiting re‑traumatisation of victims’ families and community protection.
BEECH-JONES J: So, where did her Honour find that? What paragraph did her Honour find that?
MR DEL VILLAR: Your Honour will find the reference to Justice Bowskill’s judgment extracted in the Court of Appeal at [25](f), and agreement with that proposition can be found at [30] and [32]. In my submission, acceptance of those, of that purpose, means that the case has to fail anyway. That is, the challenge to the restricted prisoner regime.
GAGELER CJ: Mr Solicitor, can I just ask what you say to be the relevance of a punitive purpose, assuming it were to be found. How does it feed into the Kable analysis?
MR DEL VILLAR: I do not want to give a flippant answer of saying my learned friend really should be the one articulating that, but, in my submission, we understand the argument to be that – and this is our understanding – a punitive purpose is one of the features that demonstrates that this is an exercise of judicial power, and an exercise of judicial power that interferes with the order made by the court – that is, the sentence. That is how we apprehend ‑ ‑ ‑
GAGELER CJ: So, one way – even if it were an exercise of judicial power, is that additional step to make it a Kable case?
MR DEL VILLAR: It seems to be that the argument is – which I will deal with briefly in relation to the major premise – that one cannot affect the finality, or one cannot alter a court order – certainly a court order, resulting in punishment of an offender – other than through the appellate process. This does alter it. So, the argument goes the punishment, the punitive purpose, somehow demonstrates that there has been an alteration, an exercise of judicial power, and, therefore, some breach of the Kable principle. I am having difficulty articulating it because it is not entirely clear from the various submissions what the precise argument is that we are meeting, but I am doing my best to meet it.
GAGELER CJ: So, the questions we are asked, which reflect the questions in earlier cases, ask whether the two provisions in question are invalid because they – I am quoting – enable:
The Queensland Executive to impermissibly interfere with the exercise of udial power by State Courts –
MR DEL VILLAR: Yes.
GAGELER CJ: As the argument is being presented, my understanding is that the only relevant exercise of judicial power said to be interfered with is the order of Justice Dutney that we have been taken to.
MR DEL VILLAR: Yes, that is our understanding as well, your Honour, and it is precisely why we have based most of our submissions on the view that there can be no interference when the actual effect of that order is understood.
Can I now turn, briefly, to the major premise. I will attempt to be brief. Can I ask your Honours to turn to paragraph 7 of the plaintiff’s outline of submissions?
GORDON J: This is their oral outline?
MR DEL VILLAR: No, this is their written submissions, sorry.
GORDON J: Thank you.
MR DEL VILLAR: Your Honours will see that the way the challenge has been identified is it is said to be:
repugnant to a “defining characteristic” . . . That defining characteristic is that punishments imposed by –
the Supreme Court:
consequent upon the adjudgment of criminal guilt are final and conclusive unless set aside on appeal –
The same description of the relevant defining characteristic, your Honours will find at paragraphs 30 and 32 of those submissions. We pointed out in our written submissions that there is some difficulty with reconciling that with legislation dealing with remissions of sentences and effectively providing for mercy – and I will not take your Honours to that. But another difficulty is that, if the relevant premise is defined in that way, it would be very difficult to understand how legislation which was not regarded as terribly controversial in Baker v The Queen allowing for the resentencing, the imposition of a minimum term when the earlier sentence had not provided for such a thing, would be valid.
I will not take your Honours to Baker v The Queen. I will just give your Honours the reference. Your Honours, you will find that reported at volume 223 CLR 113. At page 529, at paragraph 33, it is made abundantly clear that the resentencing decision – that is the resentencing under section 13A of the Sentencing Act – altered the earlier sentence. Your Honours, I am not going to dwell further on the major premise because my learned friend did not dwell further on the major premise and, in my submission, those are enough to highlight some of the difficulties with it.
Your Honours, that leads me to the last point, and that is about what would happen if the no cooperation declaration provisions are found to be invalid. In our submission, if your Honours were to take that course, then the earlier provision, which is section 193A – in the form that your Honours will find at page 23 of volume 1 of the special case book at tab 4, which is conveniently set out at paragraph 10 of the special case – that would revive.
The reason we say that, your Honours, is because there is no evident intention of the Parliament that the repeal of section 193A was contingent of the enactment of the new provisions regarding no cooperation declarations. There was no intention to leave a gap if the new provisions were invalid. We call in aid what is said at Roach v Electoral Commissioner, which your Honours will find reported in volume 233 of the Commonwealth Law Reports at page 162, at paragraph 97, which your Honours will find at page 202.
It seems to have been accepted by my learned friends that if section 175L of the Corrective Services Act is invalid, the previous no body‑no parole scheme will revive. We have set out in our written submissions that that was our understanding. Nothing my learned friend said has contradicted that, and the orders that they seek at paragraph 49 of their written submissions make that quite clear – or the answers to the special case questions.
Your Honours, we would simply end by saying the plaintiff’s acceptance of the validity of the earlier version of 193A demonstrates the extent to which his case rests on matters of form rather than of substance, because under those provisions, he too would not be able to be granted parole. Your Honours, the question should be answered in the form posed by the defendant in paragraph 63 of our written submissions. And unless I can be of further assistance, those are the defendant’s submissions.
GAGELER CJ: Thank you, Mr Solicitor. The Solicitor‑General for South Australia.
MR WAIT: Your Honours, the plaintiff’s submission that the impugned provisions alter the sentence imposed on him is not only inconsistent with the authority of this Court, for the reasons explained by my friend the Solicitor‑General for Queensland, it is also consistent with what we have described as the mutable nature of the rules governing parole that has been a feature of those systems since their inception. In paragraph 10 of our written submissions, we have set out, simply by way of example, the very substantial amendments to the parole regime that has been applied in South Australia since 1969. Historical variations, even very significant ones, to parole regimes of these kinds have not been understood to have interfered with criminal sentencing.
If I can move on, then, to the judicial power contention of the plaintiff. The plaintiff’s submission that the impugned provisions confer judicial power on the parole board should not be accepted. It is not only the prerogative of mercy in its non‑statutory form that is plainly an exercise of executive power, but the more closely‑prescribed modern analogues – statutory analogues – have also traditionally been reposed in executive bodies such as governors, ministers, prison authorities, and parole boards. And the decision‑making of such bodies is turned on policy considerations that have been many and varied, including resourcing constraints, rehabilitation, mitigation and punishment, community safety concerns, and public confidence. That history, we say, strongly informs the nature of the power under consideration in this case.
It is also important to observe that even if the power conferred by the parole board could be characterised as judicial, that, South Australia submits, would not in itself be determinative of the Kable challenge. South Australia submits that in the absence of the separation of powers at a State level, the strictures of the Lim principle do not have direct application to the States, and I refer the Court to the relevant paragraphs of the case of Garlett v Western Australia 277 CLR 1, it is at volume 4, tab 22. I do not intend to take the Court to it, but the relevant ‑ ‑ ‑
EDELMAN J: Garlett did not overturn Kable.
MR WAIT: No, no, your Honour, of course not, and we ‑ ‑ ‑
EDELMAN J: The starting point in the Kable principle is a notion of punishment, at least in this context, and that notion of punishment cannot be any different from the notion of punishment as recognised in Lim.
MR WAIT: I accept that, your Honour. I accept that there is no separate, differential notion of punishment applicable under a Kable analysis and a Lim analysis. The point that we make, though, is that if a power is conferred that is punitive, that may well be – and in some cases it may be a powerful indicator of Kable invalidity, but a further step is required, and that further step is required in order to make out the institutional integrity test.
EDELMAN J: Yes.
MR WAIT: The paragraphs that we say are relevant from Garlett are 40; paragraph 123, where your Honour the Chief Justice takes the different view; paragraph 184; 247 and 306. That may not be an entirely comprehensive list of the relevant paragraphs.
Turning, then, finally, to the novel defining characteristic proposed by the plaintiff, we accept that interference – if these provisions did interfere with the judicial sentence of Justice Dutney then that may impair the institutional integrity of State courts so as to enliven the Kable doctrine, but we do not accept the plaintiff’s invitation to discern a novel defining characteristic that punishments imposed by State courts cannot be altered or varied other than on appeal.
Firstly, there are exceptions to that principle that have been identified in the submissions of Queensland and the various interveners, including, importantly, the prerogative for mercy. Further, it would seem that if such a defining characteristic was to operate, then it would need to apply not only to sentences but to all judgments, decrees, orders and sentences of Supreme Courts, which, of course, would be a much broader proposition again.
To that, we say there would be acknowledged and well‑recognised exceptions. To take one example, there are variation schemes that apply in relation to charitable trusts where the court has a jurisdiction but also some members of the Executive have a jurisdiction, such as the Attorney‑General. There is a scheme like this in South Australia and some similar schemes in operation in other jurisdictions.
BEECH-JONES J: If the law extended to the head sentence, you would agree that is a problem, would you not?
MR WAIT: Yes, your Honour, I would accept that. I would. Your Honour, I think I have to say, via the Kable doctrine, yes.
GLEESON J: And what if the law reduced the head sentence?
MR WAIT: In my submission, there would be no difference in principle. Just returning to briefly finish my trusts point, it is that a variation scheme can be made to a charitable trust by the Supreme Court and that can then be varied by the Attorney‑General on an application of a trustee. So, the effect of the Attorney‑General’s decision is to alter the Supreme Court decision. This is just one example that I am trying to paint – a practical, real‑world example that we say derogates from an absolute proposition that there can never be a variation or an alternation from an order of a Supreme Court that would not inevitably trigger a Kable invalidity.
Finally, we say that the plaintiff’s reliance on the Queensland Court of Appeal decision in Lawrence [2013] 2 Qd R 504 – again, I do not intend to take the Court to it, but it is at volume 6, tab 40 – we say that that case does not assist the plaintiff but, when properly read, is rather an orthodox application of the Kable doctrine rather than an application of some novel or additional implication from section 73. The relevant paragraphs are, we say, to make out that proposition, we have set out in our outline of oral argument.
Unless I can be of further assistance, they are the submissions for South Australia.
GAGELER CJ: Thank you. The Solicitor‑General for the Northern Territory.
MR CHRISTRUP: Thank you, Chief Justice. Given what has been put this morning, the need for me to make any oral submissions in relation to the two points I wished to raise does not arise. Unless your Honours have any questions for me, I do not propose to make any oral submissions.
GAGELER CJ: Thank you. The Solicitor‑General for Western Australia.
MR BYDDER: May it please the Court. I am in a similar position to my friend the Solicitor‑General for the Northern Territory. The plaintiff’s case, as it has been summarised, is that you can change the system of parole but not by way of punishment. The declarations are not punitive, for the reasons that have been identified by my friend the Solicitor‑General for South Australia. We would seek to supplement those submissions on one point only, and that is to invite your Honours, first, to turn up
section 175H(2) of the Corrective Services Act which, your Honours will recall, was identified by the plaintiff as indicative of a punitive purpose.
As the Solicitor‑General for Queensland has submitted, the considerations in subsection (2) are entirely consistent with community protection and that is illustrated if your Honours turn up section 193 of the Act. Section 193 is part of the process for the board to consider an application for a parole order that is not an exceptional circumstances parole order. If the board, after considering an application, decides to refuse the application, under subsection 6, paragraph (b) of section 193, the board must:
decide a period of time within which a further application for a parole order . . . by the prisoner must not be made without the board’s consent.
If your Honours turn to subsection 8, your Honours will see considerations to which the board must have regard in determining that time period. Your Honours will find that they are remarkably similar to the considerations that appear at section 175H(2). The consideration in paragraph (a)(i) is identical and, in paragraph (b), they are very similar. It was accepted by the plaintiff that parole considerations are not ordinarily punitive; this forms part of the ordinary consideration of parole. Just as those considerations are not punitive nor, in my respectful submission, are the considerations which appear at 175H(2).
In any event, it is not enough that they be punitive. They need, for Kable purposes, to interfere with the court order. On the authority of Crump, Knight and Minogue, the impugned provisions simply do not. They do not affect the sentence at all. Otherwise, your Honours, the matters we proposed to address orally have been addressed. Unless I can assist the Court further, we simply adopt our written submissions and our outline of oral submissions.
May it please the Court.
GAGELER CJ: Thank you. The Solicitor‑General for Victoria.
MR POUND: If the Court pleases, we seek to make two short points. The first is that the principles accepted in Crump, Knight and Minogue apply with equal force to a provision which restricts the prisoner’s eligibility to apply for parole, as they did to provisions restricting a prisoner’s eligibility to be granted parole, which was the nature of the provisions in question in those cases. We have sought to summarise those principles in paragraph 4 of our outline, and I will not go over them. We would only add to what has been said already today a reference to the recent decision of this Court in R v Hatahet 98 ALJR 863 at 869, paragraphs [19] to [20], in the joint judgment. I do not need to ask your Honours to go to that.
In short, those principles hold that the legal effect of the order setting a minimum term was only to set a period during which a prisoner is not to be released on parole, but said nothing about what might happen after the expiry of the minimum term. The expiry of the minimum term may enliven a parole board’s power to consider a prisoner’s eligibility subject to the statutory scheme, but it does not confer any entitlement to that consideration. What happens thereafter is a matter for the Executive, subject to the statutory scheme in force from time to time.
That is how we understand what Chief Justice French said in Crump at paragraphs 34 and 36, to which your Honours have already been taken. At paragraph 34 the Chief Justice contemplated that the order setting the minimum term enlivened the prisoner’s eligibility for parole under the statutory scheme as it then stood, but in paragraph 36 also contemplated that the statutory scheme might validly change and even to the point of abolishing a prisoner’s eligibility for parole.
It is for that reason that we say, in paragraphs 20 and 21 of our written submissions, that it was not essential to the conclusion in Minogue, or the earlier cases of Crump and Knight, that the provisions were cast in a form under which a prisoner remained eligible to apply for parole, notwithstanding the very limited circumstances in which they might receive a grant of parole.
The second point is that that is also why we say that changes to the parole system do not constitute additional punishment. The punishment that is imposed remains that set by the head sentence, and early release through the parole system would involve the extension of a mercy, or concession, or a mitigation of that punishment by the Executive. The restriction or denial of that concession does not amount to punishment. Again, that point was recently reiterated in Hatahet in paragraph [34], where the joint judgment said:
Because there is only ever one sentence imposed by a court (subject to any appeal), and because the issue of parole is left to the executive branch of government, who may legitimately change the conditions for securing parole at any time, the prospect of a reduced chance of parole does not itself constitute the imposition of a greater burden arising from that sentence.
Otherwise, we rely on our written submissions, your Honours.
GAGELER CJ: Thank you. Ms Caldwell.
MS CALDWELL: Your Honours, most of what I had proposed to say has already been addressed by the defendant and the other interveners. I just wish to make two short points. The plaintiff relies on section 175H(2) to argue that that provision – the restrictive prisoner provisions – have a punitive purpose. In response to your Honour Justice Edelman’s comment about whether or not a decision regarding parole would ordinarily have a punitive purpose, it was accepted by counsel for the plaintiff that it would not do so.
I wish to simply make the point that the consideration set out in section 175H(2) are familiar concepts in the context of parole. The relevant New South Wales provision is in the joint book of authorities, volume 2, tab 12, at page 369.
EDELMAN J: Well, section 193, in the very Act – as the Solicitor‑General for Western Australia points out – that contains very similar provisions.
MS CALDWELL: Yes, that is so, your Honour. Your Honour will see that provision, section 135(2)(a), and (3)(a) and (d) reflect the same considerations that are in section 175H(2) of the impugned legislation in this case. The only other point I wish to make, your Honour, is my learned friend the Solicitor‑General for Queensland made some submissions about the effect of orders under section 13A of the Sentencing Act 1989, the validity of which was considered in Baker. He took your Honours to paragraph 33 of that decision in which the plurality said that it altered or varied the sentence that was imposed in that case. I just simply wish to draw your Honours’ attention to paragraph 1 of that decision, in which – and that is at page 458 of the court book – the Chief Justice said that that:
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.
Otherwise, your Honour, that is what I wish to say. May it please the Court.
GAGELER CJ: Thank you. Mr Scott.
MR SCOTT: Your Honours, I have some relatively brief reply. Firstly, to take up the discussion regarding the distinction between substance and form between the Solicitor‑General for Queensland and various members of the Bench, we submit there is no difference in substance between legislation that seeks to achieve Parliament’s purpose directly overturning a sentencing decision versus legislation that authorises the Executive to do so.
As to whether or not the purpose of this legislation is genuinely non‑punitive, we would seek to emphasise the timing at which these declarations may be made. That is, shortly after sentence as opposed to when the prisoner would otherwise be eligible to be considered in accordance with the sentencing decision.
As to section 175H and the considerations there specified for the president making a restricted prisoner declaration, we take up what the Solicitor‑General for Queensland said about subsection (2)(a) as being about protection rather than punishment such as the gravity of the offending. What we submit is, in assessing the accuracy of that submission, it is relevant to note there is a distinct consideration that seems more apt to be relevant to protection, which is subparagraph (b), which is directed to risk.
As to how these considerations may be distinct, a practical illustration of that, we submit, is found in the Court of Appeal’s decision of Neyens to which the Court was taken to. Could I please ask the Court to return to that decision, which is in part D, volume 6 of the authorities. The decision itself commences at page 1778. Particularly, if I could ask the Court to please go to page 1784, where paragraph [25](f) appears. Your Honours will recall being referred to that by Mr del Villar and the adoption of what appears in paragraph (f) by the Court in paragraph [30]. What we are identify is, about midway through the quote of the observation of the Queensland Chief Justice, these words:
As submitted by the respondent, it is possible that, in a particular case, the risk to the public may be low, yet the nature, seriousness and circumstances of the offence(s) and the likely effect that the prisoner’s release on parole may have on the victims’ family may be such that warrants the making of the declaration, in the public interest.
As your Honours were told, and as appears at paragraph [30], that was adopted as correct by the Court of Appeal. New South Wales made some submissions about section 175H(2)(a) being unexceptional and simply just another example of what is found in other legislation such as New South Wales legislation. In particular, section 135 of the New South Wales Crimes (Administration of Sentences) Act was identified. Your Honours, could I ask that the Court goes to that provision, which is part B, volume 2 of the authorities, tab 12, page 369. Your Honours will see section 135(3), which speaks to considerations such as:
the nature and circumstances of the offence to which the offender’s sentence relates –
But that, we submit, must be understood in the context of the opening words of subsection (3), which says:
In considering whether it is in the interests of the safety of the community –
Which squarely makes it about protection as opposed to punishment. An observation was made by the Solicitor‑General for Queensland that, as we understand it, the sentence imposed in this case, life imprisonment, was the most serious that could be imposed. We submit that takes no account of the sentencing judge’s discretion under section 305(2) as to the minimum term that may be fixed under that section.
Finally, your Honours, can I just address a question that Chief Justice Gageler put to the Solicitor‑General for Queensland regarding the relevance of punitive purpose. As we can identify, it may be relevant in this sense. That is, in identifying whether in substance the executive power in issue in this case interferes with the punishment imposed as part of a sentence.
GAGELER CJ: Can I just ask you one further question by way of clarification of your argument. Is it any part of your argument that either of these provisions confer judicial power on the board?
MR SCOTT: I think the answer to that, your Honour, is no. The more accurate – and I appreciate that your Honour is concerned about the question that asks whether or not this is an impermissible conferral of judicial power ‑ ‑ ‑
GAGELER CJ: No, no, no, I had not appreciated that to be part of your argument until it was suggested by the Solicitor‑General for South Australia.
MR SCOTT: Yes.
GAGELER CJ: But if you say no, that is an answer with which I am content. Thank you.
MR SCOTT: Thank you, your Honour. Those are my submissions.
GAGELER CJ: The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.
AT 12.17 PM THE MATTER WAS CONCLUDED
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