Knight v State of Victoria & Anor

[2017] HCATrans 61

[2017] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M251 of 2015

B e t w e e n -

JULIAN KNIGHT

Plaintiff

and

STATE OF VICTORIA

First Defendant

ADULT PAROLE BOARD

Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 MARCH 2017, AT 10.16 AM

Copyright in the High Court of Australia

MS K.L. WALKER, QC:   If the Court pleases, I appear for the plaintiff with my learned juniors, MR D.B. BONGIORNO and MR B.C. GAUNTLETT.  (instructed by Stary Norton Halphen)

MR R.M. NIALL, QC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear on behalf of the first defendant with my learned friend, MR G.A. HILL.  (instructed by Victorian Government Solicitor)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear on behalf of the Commonwealth Attorney‑General with my learned friend, MR G.J.D. DEL VILLAR.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS J.E. DAVIDSON, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR A.D. KEYES, for the Attorney‑General for Queensland intervening.  (instructed by Crown Law)

MR P.D. QUINLAN, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MS H.C. RICHARDSON, for the Attorney‑General for Western Australia intervening.  (instructed by State Solicitor (WA))

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with my learned friend, MS F.J. McDONALD, for the Attorney‑General for South Australia intervening.  (instructed by Crown Solicitor (SA))

KIEFEL CJ:   Yes, Ms Walker.  Ms Walker, may I ask you at the outset, are you seeking leave to reopen Crump?

MS WALKER:   That is, your Honour, a fall‑back position because the principal submission put by the plaintiff in relation to Crump is that it can be distinguished because the legislative scheme that was in issue in Crump was not, we say, an ad hominem scheme of the kind that the Court is presented with in this case.  In this case, the Court would be aware, the scheme specifically names an individual and we say that Crump can be distinguished on that basis.

We have gained some support for that, your Honour, from some remarks in Baker, and I will be taking the Court to those.  But, we do say as a fall‑back, if this Court were to regard Crump as holding that ad hominem legislation which interferes with a sentence imposed on a person was valid then, to that extent, we would seek to reopen Crump and we would seek leave – assuming leave is necessary – there has, of course, been some debate historically about whether leave is necessary – but if leave is necessary, we would seek it but only in relation to that fall‑back proposition.

KIEFEL CJ:   You will be addressing the factors that must be addressed then in relation to such an application?

MS WALKER:   That is right, your Honour, and we have touched on those, albeit briefly, in our written reply submissions.  We did it briefly because, as I say, our principal argument is we actually do not need to go down that pathway.

KIEFEL CJ:   But you will be developing them further in your oral argument.

MS WALKER:   Yes, indeed, your Honour.  The Court I hope will have the outline of oral argument that has been provided.

KIEFEL CJ:   Thank you.

MS WALKER:   Before turning to the propositions that are set out on that document, there are some introductory remarks that I wish to make, including some relatively brief reference to the facts and, of course, to the legislative scheme with which we are concerned.  As the Court would be aware, the case concerns the validity of one single section of the Corrections Act 1986 (Vic) and that is section 74AA and that section, as I have already indicated, provides that Julian Knight, the plaintiff, who is named in the section, shall not be released on parole unless certain conditions are satisfied.

So, very squarely we say it is ad hominem legislation, and as your Honours will have gathered both from what I have just said to your Honour the Chief Justice and from our written submissions, it is the ad hominem nature of the legislation that very much animates the plaintiff’s arguments in this case and as I have indicated, again briefly, we say that is what distinguishes the plaintiff’s case from that in Crump.

I might also add that the plaintiff’s second argument concerning the involvement of judicial officers in the exercise of functions by the Parole Board was not, as we understand it, an argument put to this Court in Crump.  So to the extent the second argument is concerned we would say that was simply not a matter the Court was even asked to consider in the context of Crump.

In this particular context we say the plaintiff was, to use the language of the plurality in Baker, the sole and direct target of this section and that, we say, makes this regime very different from the regime that was considered in Crump and the related cases of Baker and Elliott, and so forth.

Fundamentally what we say is that section 74AA of the Corrections Act replaces a party‑specific judicial judgment about eligibility for parole at a particular point in time with a party‑specific legislative judgment about the same matter – that is, it replaces a judicially determined minimum term, determined for a particular and identified individual, with a legislative determination of in substance a minimum term for that same individual.

Can I briefly take the Court to the factual background?  The relevant facts for the Court’s purpose of course are set out in the amended special case and I am not proposing to read the entirety of that document to the Court.  The amended special case is found, your Honours, in a supplementary special case book and it commences at page 4 of that supplementary special case book. 

In brief form, the key facts are these.  In November 1988 the plaintiff pleaded guilty to seven counts of murder and to 46 counts of attempted murder in the Supreme Court of Victoria.  Your Honours will see that is the very first proposition in the amended special case.

Justice Hampel sentenced the plaintiff to life imprisonment.  That is the amended special case at paragraph 2.  His Honour set a minimum term of 27 years, and he did so pursuant to section 17 of the Penalties and Sentences Act 1985, and I will take your Honours to that section when I come to the legislation. 

Of course, we say that was a judicial determination of the minimum period that the plaintiff must serve in prison before he would be eligible for release upon parole and, indeed, one might add the minimum term that he must serve in order for, effectively, justice to be seen to be done in terms of the imposition of the sentence and the distinction between the head sentence and the minimum term.

Now, Justice Hampel’s sentencing decision is reproduced in the original special case book and I will take your Honours to some aspects of that original sentencing decision.  It is at page 33 – it commences at page 33 of the original special case book, but I would ask your Honours to go to page 38, where his Honour Justice Hampel, at approximately point 6 on the page, concludes his sentencing remarks with the proposition:

Accordingly, you are sentenced to be imprisoned for life in respect of each of the seven counts of murder -

and then a separate sentence for the 46 counts of attempted murder to be served concurrently.  Then your Honours will see the commencement in Justice Hampel’s sentencing remarks of his Honour’s consideration of and reasons for the determination of a minimum term.  Your Honours see there the proposition that a substantial part of the submissions was directed towards this question; his Honour’s explanation of the point of the minimum term.  It is not a period at the end of which the prisoner has any entitlement to release, and we certainly do not submit to the Court that the effect of the minimum term is any entitlement to be released.  That is not part of the plaintiff’s contention.

Over the page, on page 39 of the special case book, or on page 711 of the reports of the sentencing remarks, your Honours will see there at about line 9 the proposition that Mr Dickson, being the prosecutor, did not contend that a minimum term should not be fixed, and then his Honour says, at about line 11:

In my view, the fixing of a minimum term in this case is appropriate because of your age and your prospects of rehabilitation, as well as the other mitigatory factors . . . not only in your interest, but in the interest of the community.

He then refers to some evidence given by Dr Bartholomew and, at line 20:

In fixing the minimum term, it is necessary to ensure that it does not destroy the punitive effect of the head sentences.  On the other hand, in a case such as this an unduly high minimum term would defeat the main purpose for which it is fixed, namely your rehabilitation and possible release ‑

Then his Honour concludes:

In all the circumstances, I consider that the appropriate minimum term before which you will not be eligible for parole is 27 years.

So it is apparent from that, your Honours, that Justice Hampel gave considerable attention to the question of the minimum term and, ultimately, of course decided that he would impose a minimum term.  He did not have to, but he did decide that he would.

Now, in May 2014, that minimum term of 27 years expired and your Honours see that at the amended special case at paragraph 5.  But prior to the date on which the minimum term expired Parliament passed the Corrections Amendment (Parole) Act, which introduced section 74AA into the Corrections Act.  That, of course, is what we are concerned with today.

Now, in terms of the factual matters, in the amended special case, your Honours will see that there are some details set out about the nature of the Adult Parole Board and I am not going to traverse those immediately with your Honours.  I will note at this point, paragraph 10 of the amended special case updated to January 2017, that the Board presently consists of relevantly, we would say:

(a)       one sitting Judge of the County Court;

. . . 

(c)       seven sitting Magistrates ‑

and no justices or associate justices of the Supreme Court of Victoria.  The special case then sets out some matters which are really matters of statute and I will come to those when I take your Honours through the legislation.  Your Honours will then see at paragraph 14 the proposition that the secretary, that is the secretary of the relevant government department:

is empowered to sit as a member of the Board –

although the Secretary has not to date done so. Then, your Honours, we come to the plaintiff’s application for parole and the response to that application by the Parole Board. Commencing with the proposition that the parties have agreed, the plaintiff is not at present in imminent danger of dying or seriously incapacitated and those matters are obviously relevant to the test that is imposed by section 74AA of the Act. In March 2016, your Honours will see at paragraph 16:

the plaintiff applied . . . for the Board to make an order that he be released on parole pursuant to s 74 of the Corrections Act ‑

and a copy of that application is annexed to the special case but I do not think I need to take the Court to it. The fact is, the application was made consistently with the requirements of section 74AA(1).

On 27 July 2016, the Board considered the plaintiff’s application and your Honours will see there at paragraph 17 the Board, when it considered the plaintiff’s application, was:

constituted by a retired judge and two  non‑judicial members –

and in July 2016 what the Board decided was that it required reports from various people, Professor James Ogloff being one, the secretary to the Department of Justice and Regulation being another because that, as we will see, is a feature of section 74AA, and:

a report from Community Correctional Services –

and then decided:

to not make any order that the plaintiff be released on parole under s 74 of the Corrections Act.

And again that decision is set out as an annexure but I think at this point I do not need to take the Court to it. It then transpires, your Honour, that the Board has not received any of those reports, including, and perhaps most relevantly, the report from the secretary which is required under section 74AA and, furthermore, in paragraph 18A of the amended special case that:

Since 27 July 2016, the Board has taken no further steps to progress the plaintiff’s application ‑

including it would seem no steps to follow up on the reports that it sought, ask that they be provided by any particular date.  The Board says it has taken no further steps because:

it has not received the reports requested –

That, your Honours, will be relevant really in relation to the second of the plaintiff’s contentions about the involvement, or potential involvement, of judicial officers in the scheme, because one of the things that is put against is, well, because there has not really been a decision yet, and certainly no decision involving any judicial officers, the matter really is not ripe.  It is in some sense hypothetical and we will say that one of the responses to that is that a complete failure of action on the part of the Board ought not shut the plaintiff out from having this matter properly and fully determined in this Court.

Your Honours will then see at the end of the amended special case one substantive question and of course then the question of costs and the question is whether section 74AA of the Corrections Act is invalid on the basis of Chapter III of the Commonwealth Constitution.

Can I then take your Honours to the relevant legislation and I want to start not with the Corrections Act but with two sections that are relevant to understanding the nature of the minimum term imposed by Justice Hampel.  The first of those is section 17 of the Penalties and Sentences Act 1985.  I understand the Court has been provided with a copy of that section.

The version the Court has is the version as enacted but it is the version of section 17 that was in force in November 1988 when the plaintiff was subject to sentence.  Your Honours will see there in section 17(1) that it authorises a court to:

as part of the sentence, fix a lesser term (in this section called a “minimum term”) -

and we emphasise, your Honours, the words “as part of the sentence”.  So the proposition we draw from this, I think perhaps uncontroversially, is that the setting of the minimum term by Justice Hampel was part of the sentence and we say of course in that respect it was an exercise of judicial power by his Honour and that of course is consistent with the decision of this Court in Baker in relation to in that context resentencing persons including by giving them a minimum term.

The other section that I will then make brief reference to – I perhaps do not need to take the Court to it although we have provided a copy, perhaps out of an abundance of caution – is section 12 of the Sentencing Act 1986 in its current form.  That section simply does this.  It provides that:

A reference in this or any other Act to a non‑parole period includes a reference to a minimum term -

So what we see is a translation of the language of “minimum term” into the more modern language of “non‑parole period”.           Can I now ask your Honours to go to the Corrections Act 1986.  Your Honours I believe will have Reprint 122, which was the version in force at the time the list of authorities were filed.  Since version 122, there have been some amendments which we say are relevant to the way in which the Court might consider the operation of the Corrections Act.  So we have provided an extract that contains two new provisions and I will take your Honours to those separately as I take your Honours through the relevant part of the Corrections Act.

Your Honours, the Corrections Act deals with a range of matters but the relevant part for our purposes is Part 8, which deals with temporary absence from prison. There are some definitions in section 55 which I think need not trouble us and then, your Honours, the relevant division within Part 8 is Division 5, which deals with parole. That division commences by establishing the Adult Parole Board and providing for the composition of the Adult Parole Board. Your Honours will see there in section 61(2)(a) that the Board consists of:

(a)such number of Judges of the Supreme Court as are appointed by the Governor in Council on the recommendation of the Chief Justice –

 . . . 

(ab)      . . . Associate Judges of the Supreme Court ‑

. . . 

(b)       . . . Judges of the County Court –

. . . 

(c)       . . . Magistrates ‑

. . . 

(d)one or more persons appointed by the Governor in Council as full‑time members ‑

(da)one or more retired Judges of the Supreme Court or the County Court or a superior court or an intermediate court or retired Magistrates –

. . . 

(e)       . . . part‑time members –

. . . 

(f)       the Secretary.

That is where one sees the potential pool of persons that can be appointed to the Parole Board.  It is no longer the case that there must be a justice of the Supreme Court on the Parole Board.  That historically was the case but the modern regime permits but does not require a judge of the Supreme Court, and likewise the other categories of member.  As I have indicated to your Honours when I took your Honours through the amended special case, at present there is one sitting County Court judge and seven sitting magistrates. 

The next relevant provision, I think, your Honours, is the terms of office, which is found in section 63 of the Act, which deals first with the proposition that:

a member . . . holds office for the term, and subject to the conditions stated in the member’s instrument of appointment but is eligible for re‑appointment.

Your Honours will see in subsection (1A):

A member . . . may hold office for a maximum of 9 years ‑

Subsection (2):

The Secretary ceases to hold office . . . upon ceasing to hold the office of Secretary.

So the role of the secretary on the Board is to represent, in a sense, the executive branch, the department of which that person is the secretary.  Subsection (3):

A member of the Board may resign ‑

Subsection (4), the circumstances in which an office might become vacant, and then subsection (6):

If a member who is a Judge of the Supreme Court or the Country Court ceases to be a Judge, the member ceases to hold office as a member.

And (6A) likewise for a magistrate, indicating of course that those persons are appointed to the Parole Board by reference to the fact that they hold office as a judicial officer.

I think I need not trouble your Honours with the detail in remaining sections there – the remaining subsections.  Can I then take your Honours to section 64 of the Act, which provides for the Board to:

exercise its powers and functions in divisions ‑

Subject to certain specific sections, sections 64A, which I will come to in a moment, and section 74AAB:

a division of the Board consists of at least 3 members of whom at least one must –

effectively be a judicial officer or a retired judicial officer, and:

the chairperson of the Board may give directions as to the arrangement of the business of the Board and as to the persons who are to constitute divisions . . . of particular matters.

So it is certainly the case that the Board is able to constitute itself in divisions, and in some circumstances it must.  Your Honours will see one example of a statutory direction that the Board is to constitute itself in a division – perhaps I should put that in a slightly different way ‑ but there is a statutory division created by section 64A which provides that:

There is to be a Detention and Supervision Order division (DSO division)

. . . 

The Secretary is not eligible to sit as a member –

of that division – that is subsection (3).  And in subsection (5):

At least one of the members –

must be a judicial officer or retired judicial officer.  So, the statute does, in some respects, direct there be a division of that kind and your Honours will see another example as we progress through the legislation.

There are then various procedural provisions about the way in which the Board conducts its business but I need not trouble your Honours with, save for section 69 which refers to the functions that the Board has and in subsection (2) provides that:

In exercising its functions, the Board is not bound by the rules of natural justice.

GAGELER J:   Does that include the bias rule as well as the hearing rule?

MS WALKER:   It is an interesting question, your Honour.  It would appear, on its face, to do so.  It is a general reference to the rules of natural justice.  Given that the secretary might form – and in some cases will form a part of the Board – it might be thought that the involvement of the Executive in that very direct, somewhat political, way might, in fact, cause a bias problem – not in all cases, necessarily.  I suppose it would theoretically be possible to read down subsection (2) of section 69 so that it was taken only to refer to the hearing rule but there is no textual indication that that was the intention of Parliament when it said in very broad terms, the Board is not bound by the rules of natural justice.  Can I then move, your Honours, to section 73A which provides that:

The Board must give paramount consideration to the safety and protection of the community in determining whether to make or vary a parole order, cancel a prisoner’s parole or revoke the cancellation of parole.

That section immediately precedes section 74 which is the principal section that authorises the Board to make a decision that a person should be released on parole. Section 74 is expressed to be subject to section 74AAB and 78(3), but putting those matters to one side for now:

the Board may by instrument order that a prisoner serving a prison sentence in respect of which a non‑parole period was fixed be released on parole at the time stated in the order (not being before the end of the non‑parole period) and, unless the Board revokes the order before the time for release stated in the order, the prisoner must be released at that time.

So that, your Honours, is the general power that the Board has in relation to decisions about parole and what your Honours will see is that that section, of course, results in – if an order for release on parole is made – the release of the prisoner although the prisoner remains under sentence.  So it is, in a sense, a temporary absence from prison as the heading to Part 8 indicates because it is always subject to revocation and the person remains subject to the head sentence.

There are then various subsections dealing with electronic monitoring, and terms and conditions of parole orders, with which I need not trouble the Court.  Can I now ask your Honours to go to the additional extract, which contains one of the new sections inserted into the Corrections Act, which is section 74AAA.  This section is entitled “Conditions for making a parole order for prisoner who murdered a police officer”.  Your Honours will see there that this section provides that:

(1)The Board must not make a parole order under section 74 or 78 -

Can I just pause, your Honours, to indicate that section 78 deals with making a further order for parole for a prisoner who has previously been released on parole and come back into prison. It is not relevant for our purposes. So our principal focus is on section 74. Section 74AAA says that:

(1)The Board must not make a parole order under section 74 or 78 in respect of a prisoner convicted and sentenced (whether before, on or after this section comes into operation) to a term of imprisonment with a non‑parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer –

unless an application is made by that person.  Then your Honours see:

(2)The application must be lodged with the secretary of the Board.

(3)In considering the application, the Board must have regard to the record of the court in relation to the offending . . . 

(4)After considering the application, the Board must not make a parole order under section 74 or 78 (as the case may be) in respect of the prisoner unless the Board-

(a)is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner –

(i)is in imminent danger of dying, or is seriously incapacitated and, as a result, the prisoner no longer has the physical ability to do harm to any person; and

(ii)has demonstrated that the prisoner does not pose a risk to the community; and

(b)is further satisfied that, because of those circumstances, the making of the parole order is justified.

Now, your Honours, that is a provision of general application.  It applies to a distinct category of prisoners, but that is a category of prisoners who have committed an offence of a particular kind, namely, the murder of a police officer.

We then move to section 74AA, which is the subject of this proceeding and there are some notable similarities between 74AAA and 74AA, except of course that 74AA, as its title says, provides the “Conditions for making a parole order for Julian Knight”. So your Honours will see subsection (1):

The Board must not make a parole order under section 74 in respect of the prisoner Julian Knight unless an application for the order is made –

Now, of course, as I have indicated to your Honours, an application has been made, as required by that section, if he wishes to be considered for parole.

(2)The application must be lodged with the secretary of the Board.

Then subsection (3) is materially the same terms as 74AAA:

(3)After considering the application, the Board may make an order under section 74 in respect of the prisoner Julian Knight if, and only if, the Board –

(a)is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner –

(i)is in imminent danger of drying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person; and

(ii)has demonstrated that he does not pose a risk to the community; and –

(b)is further satisfied that, because of those circumstances, the making of the order is justified.

So your Honours will have seen, I am sure, the very close parallel between that section and section 74AAA and of course your Honours might also recall the similarity between subsection (3) and the legislation considered by this Court in Crump, about which I will have something more to say.  One then sees subsections (4) and (5) dealing with the application of the charter, and I need not trouble the Court with those.  Then of course in subsection (6), the legislation provides that:

a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.

One of the things that I will emphasise to the Court in the course of more substantive argument is not only the ad hominem nature of the legislation in singling out Julian Knight but the fact that the legislation singles him out expressly by reference to the sentence imposed upon him.

In terms of the new sections one can see section 74AABA has been inserted into the Corrections Act.  This is again a section of general application dealing with conditions for parole orders for persons imprisoned for certain fatal offences and it really is directed at making relevant the question whether the person has co‑operated in the investigation of the offence to identify the location of the body or remains of the victim of the offence and the place where the body or remains of the victim may be found.  That section again is a section of general application and in subsection (3) provides that when considering the matters under subsection (1) the Board must have regard to, amongst other things:

a report from the Secretary to the Department -

In the reprint that your Honours have, the next section would be section 74AAB and this section deals with release on parole of persons imprisoned for sexual offences or serious violent offences and establishes a special division of the Parole Board to deal with offences of this kind known as the Serious Violent Offender or Sexual Offender Parole Division, abbreviated to SVOSO.

So this is a second example where the legislation directs that there shall be a division that is to deal with particular kinds of prisoner and subsection (2) provides that:

The sole function of the SVOSO division is to decide whether or not to release a prisoner on parole in respect of a sexual offence or a serious violent offence -

and provides that an order under section 74 that a prisoner be released on parole in relation to such an offence may only be made by this division. Subsection (4) provides:

Subsection (3) applies whether the prisoner was sentenced to imprisonment . . . before or after this section comes into operation.

(5)The SVOSO division may only make an order that a prisoner be released on parole . . . if‑

(a)another division of the Board has recommended that parole be granted; and

(b)the SVOSO division has considered the recommendation.

Subsection (7):

After considering the recommendation . . . the SVOSO division may refuse to make an order that a prisoner be released on parole . . . even if –

the other division has recommended that release and there is a definition of “serious violent offence” and “sexual offence”. 

Now, it is common ground that on its face section 74AAB would be capable of applying to Julian Knight. In that respect there is an issue of construction between the parties reflected in the written submissions, although it may end up, we say, being of no significant moment. But the plaintiff says that because there is a specific section dealing with him – section 74AA – the specific regime operates to the exclusion of the SVOSO regime really on the basis of the approach adopted by this Court in Anthony Hordern and Nystrom and like cases.

I say it may be of no great moment because on any view the parties agree that section 74AA applies to the plaintiff. Whether the SVOSO regime also applies we say is not material to the validity of section 74AA. So I really, perhaps, mention that constructional issue but we do say that it is not necessary for this Court to resolve it because there is no suggestion that 74AA does not apply to the plaintiff and, therefore, it is necessary of course, we say, for this Court to determine the validity of section 74AA.

GAGELER J:   Do we know from the special case who the chairperson of the Board is?

MS WALKER:   I do not think that made its way into the special case.  I understand the chairperson is a retired – yes, my learned friend points out that it is paragraph 8 – the current chairperson is a retired judge of the County Court.

GAGELER J:   Thank you. 

MS WALKER:   Can I then – in terms of the legislation – finally mention section 74B of the Corrections Act which is that:

Before making a parole order under section 74, the Board‑

(a)must consider any victim submission it receives . . . and

(b)may, in its absolute discretion, give that submission such weight as the Board sees fit - 

We mention that really because at a later point in the argument there is some, again, disagreement between the parties as to the role that the secretary’s report plays under section 74AA because – and I will develop this in some greater detail but so that your Honours can understand the relevance of this provision 74AA says that the Board must reach a state of satisfaction on the basis of a report prepared by the secretary and we seek to draw a contrast with section 74B and some other provisions which say that, in certain circumstances, the Board must consider certain material. I will develop the submission but, plainly, the language is different. So, those are the key provisions of the Corrections Act. 

Now, can I then ask the Court to go, reasonably briefly, to the Corrections Amendments (Parole) Act 2014? So, this is the Act that introduced section 74AA into the Corrections Act.  I do not need to take your Honours through the section that was inserted because we have traversed that already but we do draw attention to the purpose set out in section 1 which is:

to amend the Corrections Act1986 in relation to the conditions for making a parole order for the prisoner Julian Knight.

So, again the sole purpose of this amending Act was to target the plaintiff.  Now, at this point, can I ask your Honours to turn to the second reading speech for that amending Act and I might just refer to it as the amending Act henceforth.

The second reading speech, we say, amplifies the purpose that was articulated in section 1 of that amending Act.  Your Honours I think will have a document that in fact commences with the statement of compatibility which I do not wish to take your Honours to, that concerns the charter, but on page 746 of the Hansard report your Honours should see, about halfway down the first column, the heading “Second reading”, and your Honours will then see the second reading speech commencing with the proposition that this Bill:

implements a key commitment of the Victorian coalition government in relation to community safety – to make certain the government’s commitment to protect the community from Julian Knight by keeping him in jail until he can pose no threat to the community.

The bill changes the preconditions for Julian Knight’s eligibility –

and then it reveals the nature of those conditions.  In the next column, in about the second full paragraph, Mr Wells says:

This bill builds on the coalition government’s achievements by protecting the Victorian community from Julian Knight forever.

It goes on to refer to his crimes and says that:

Victorians can rightly expect that the government will do whatever we can to ensure Julian Knight is never released until he can do no harm, and with this bill, this government is delivering on that commitment.

It refers then to the sentencing of Mr Knight:

with a non‑parole period of 27 years . . . is due to expire later this year.  This bill means that Julian Knight will never be released except in very restrictive circumstances –

and at the end of that paragraph:

The effect of these provisions are that Julian Knight will die in jail, or will be in such a condition on release that he will be a threat to no‑one.

At the very bottom of the page, the last two lines, Mr Wells says:

In this exceptional case, the charter act is being overridden and its application excluded to ensure that the life sentences imposed by the Supreme Court for these egregious crimes are fully or almost fully served and to protect the community from the ongoing risk of serious harm presented by Julian Knight.

And then the final conclusion:

With this bill the Victorian community can be certain that they are protected forever from the possibility that Julian Knight will one day be free to commit another atrocity.

And the second reading speech, we say, reflects the plain purpose of the legislation which is to ensure that Julian Knight remains in prison regardless of whether, under the generally applicable parole regime, he might have been entitled to consideration and possibly release on parole.

Again, emphasising, we do not claim any entitlement to release upon parole; we simply say that on the expiry of the non‑parole period, he would have been eligible to have been considered under the general regime applicable to all prisoners serving the sentence of the kind to which he was sentenced.

Now, as your Honours will have gathered from the written submissions, the plaintiff advances two distinct contentions in relation to the invalidity of section 74AA. So, the first ground or contention is the proposition that section 74AA impermissibly interferes with the exercise of judicial power by the Supreme Court of Victoria, namely, the sentence imposed by Justice Hampel.

The second contention concerns the conferral upon State judicial officers of functions that the plaintiff contends are incompatible with the exercise of federal judicial power by the courts of which those persons are members, namely, the County Court and the Magistrates Court, at least as the Parole Board is presently constituted, bearing in mind, of course, that in the future the Parole Board could be constituted by justices of the Supreme Court.

KIEFEL CJ:   In summary, Ms Walker, how do you say that the ad hominem nature of the legislation interferes with the sentence?

MS WALKER: Well, we say it interferes with it, your Honour, because it uses the sentence and the plaintiff’s identity as the person sentenced, but in particular the sentence, as the factum by which the Parliament seeks to achieve its legislative end of keeping Mr Knight in prison forever, noting that the precise terms of section 74AA leave some possible ultimate release if he were to become in imminent danger of dying or seriously incapacitated and therefore not a physical threat to any person. But the purpose of the legislation is effectively to remove the prospect of release upon parole that was envisaged by and expressly determined by Justice Hampel.

KIEFEL CJ:   How does that constitute an interference?

MS WALKER:   Well, we say it constitutes an interference really because it is so targeted at this one person and this one sentence, and that is really – I understand your Honour is perhaps inviting me to enter the Crump territory because plainly Crump has held that the imposition of conditions of this kind in relation to parole does not alter, set aside or vary the underlying sentence.  But we do say that Crump can be distinguished because Crump did not identify a particular – I am sorry, the legislation in Crump did not identify by name any individual and did not specify any particular sentence.

KIEFEL CJ:   But that means you may be able to distinguish it by that factor.  You still have not explained the interference.

MS WALKER:   Well, can I perhaps develop the argument by reference to some of the remarks made in Kable because one of the points we do wish to make about the authorities in this sphere is that since Kable there has really been no similar example of ad hominem legislation of this kind presented to this Court.  Now, Duncan, of course, did concern ad hominem legislation, but Duncan concerned legislation directed to undoing the exercise of an executive power, so we say you put Duncan to one side.

When one looks at the jurisprudence, Kable was of course an extraordinary ad hominem case and what I want to do, your Honour, is really answer your question by developing some of the aspects of Kable and considering the way in which later courts in cases such as Fardon have understood Kable and the importance of the ad hominem aspect and by that slightly circuitous route I do hope to come back to your Honour’s question.

KIEFEL CJ:   In that process, you would deal with, I think, a view that is taken that there has been something of a movement away from the understanding of Kable as addressed to ad hominem legislation and widening more into a question of institutional integrity.

MS WALKER:   Absolutely, your Honour.  Plainly, Kable has, in that sense, been broadened in its operation and effect and will rely upon that broader understanding of Kable in relation to the second contention where we draw on Wainohu.  But, we do say that although Kable has been broadened, the significance of the ad hominem regime in Kable has not been disavowed.

The ad hominem regime in Kable, indeed, has been used in cases such as Fardon and Baker to explain why it is that laws of general application were valid even though, in certain circumstances, an ad hominem regime such as was found in Kable was not valid.  So, it is true that Kable has been broadened but we would say not so much as to render, in any way, irrelevant the ad hominem nature of the legislation.

EDELMAN J:   It is not just the matter of Kable being broadened, it is also a matter that a lot of the reasoning in Kable was focused upon matters such as community expectations or public confidence and that rationale has changed. 

MS WALKER:   I think your Honour is right to say that certainly the reasoning, perhaps in particular of Justice Toohey and Justice Gaudron, in Kable no longer reflects the current way in which the Court would articulate – or different members of the Court might articulate – the Kable doctrine.  I would contend, and I will be taking your Honours in particular to some passages from Justice McHugh and Justice Gummow, that the judgments of those two Justices do remain relevant to the way in which Kable is understood, more specifically in relation to your Honour’s point about public confidence.

In relatively recent times in, I think, Emmerson – it might have been Northern Australian Aboriginal Justice Association – I will find the reference for your Honour in a moment – but, what has been said – and this was really reflecting something Justice Gummow said in Fardon – is that public confidence is not the touchstone of invalidity, and we do not say it is, but what has been said, both by plurality and, indeed, by Justice Gageler dissenting – and I do think it might have been Emmerson – is that it is an indicator.

If the reposing of a function in a court, or a judge of a court, would have the potential to undermine the public confidence in the court and, in a sense, affect its appearance of independence and impartiality, then that is an indicator that the legislation might be such as to undermine the institutional integrity of the court.

So there has been, I think, a shift in emphasis in relation to public confidence but not a disavowal of it – more perhaps a recognition that it is not the test.  The test is the effect on institutional integrity.  But that is not to say that the effect on public confidence is irrelevant.  It can be an indicator.  And we say in this case it is an indicator of a problem in relation to a function of this kind and, in particular, we say in relation to the first contention a function of this kind which we say interferes with the sentence.

Can I at that point take the Court to I think perhaps two aspects of Kable (1996) 189 CLR 51. Can I take your Honours in particular to page 120, which is in the judgment of Justice McHugh. We do seek to relate some of what his Honour Justice McHugh has to say back to the purpose of the amending Act and the second reading material which I took the Court to, because we say there are some immediate parallels. About halfway down the page, at page 120, his Honour Justice McHugh says:

although the Act provides for the preventive detention of the appellant only upon the making of an order by the Supreme Court, it is plain that the legislature and the executive government which introduced the Act into the Parliament of New South Wales passed the Act for the purpose of ensuring that the appellant was kept in prison.

His Honour really repeats that proposition at the top of page 121, where he says:

those who initiated and passed the Act plainly expected and intended that the imprisonment of the appellant would continue after the expiration of his sentence . . . The object of the Act, its ad hominem nature and the grounds and method of proof of the s 5 order together with the provision for s 7 interim orders leave no other conclusion open.

His Honour then goes on to say that the New South Wales Parliament:

has the constitutional power to pass legislation providing for the imprisonment of a particular individual.

It is about halfway down page121.  And then halfway through that paragraph his Honour says:

However, whatever else the Parliament of New South Wales may be able to do . . . it cannot, consistently with Ch III of the Constitution, invoke the authority of the Supreme Court to make the orders against the appellant by the methods which the Act authorises. This is because the Act and its procedures compromise the institutional impartiality of the Supreme Court.

And he goes on, over the page, page 122:

The Act seeks to ensure, so far as legislation can do it, that the appellant will be imprisoned by the Supreme Court when his sentence for manslaughter expires.  It makes the Supreme Court the instrument of a legislative plan, initiated by the executive government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked –

KEANE J:   Well, insofar as the vice that his Honour identifies is the making the Supreme Court the instrument of legislative judgment, that is not this case.

MS WALKER:   No.  I entirely accept that, your Honour.  It is a different case.  If it was the same case we would not, with respect, need to be here.  Plainly, what the amending Act and 74AA does is not enlist the Supreme Court in the exercise.  But what we say is that the purpose of the Act is to ensure that the plaintiff remains in prison forever ‑ to use the language from the second reading speech ‑ in such a way – and this will, eventually, I hope, get to the answer to your Honour Chief Justice Kiefel’s question – as to impermissibly interfere with that sentence.

GORDON J: Is that not the premise that you have to address squarely now, that is how section 74AA interferes with the imprisonment order, when you have Bugmy against you, you have Power against, where you have authorities of this Court which say the sentence is the sentence?  You have to establish, do you not, that minor premise?

MS WALKER:   Absolutely, your Honour, and ‑ ‑ ‑

GORDON J:   What is the answer to it?

MS WALKER:   Well, the answer is this.  We do not say that, as a matter of law or legal effect, 74AA alters or varies the sentence.

GORDON J:   Does it interfere with it?

MS WALKER:   Well, we say it interferes with it in perhaps a more general way and not so much a matter of legal form or effect, but in substance by singling out that sentence and effectively exhibiting a legislative disapproval of the sentence and an undoing of the effect of the sentence and a removal of the plaintiff sentenced by that judge from the general regime into a specific regime.  Can I perhaps illustrate ‑ ‑ ‑

KEANE J:   But that is not disapproving of the sentence.  It is disapproving of the arrangements that might be made to ameliorate it.  It is disapproving of legislative arrangements.  It might be said to be disapproving or expressing a lack of confidence in the executive organs of government that are charged with ameliorating it, but it is not expressing disapproval of the sentence.

MS WALKER:   Well, not the sentence as a whole but, with respect, we would suggest that it is a disapproval of the setting of a minimum term of 27 years due to expire in May 2014, which is partly revealed by the timing of the amending Act which was enacted in April of 2014, clearly to reflect the view that the minimum term ought not expire and the plaintiff ought not become eligible for parole upon the expiry of that minimum term in May.

NETTLE J:   What if the legislation instead of being directed to Knight had been directed to anyone convicted of seven counts of murder and 46 counts of attempt murder?

MS WALKER:   Your Honour, if it was legislation in general terms, even if ‑ ‑ ‑

NETTLE J:   They are pretty specific.

MS WALKER:   Specific, and yet something of a general nature which could in the future be capable of being satisfied by another person.  Certainly if it was legislation that said, for example, a person convicted of seven counts of murder, we could not complain because firstly the legislation would not be ad hominem, but secondly it would – or perhaps the obverse point – it would be of general application even if in fact at the time it was passed there was only one person capable of fulfilling it, because it would be also capable of being fulfilled by some other person in the future.

NETTLE J:   That means if you write to Parliament next week and amend the legislation to say it applies to someone convicted of seven murders and 46 attempt murders.

MS WALKER:   Yes, your Honour.

GORDON J:   The reason is because the imprisonment order makes no warranty about what the parole system will be when that person is sentenced, and you must accept that as your premise.

MS WALKER:   We do, your Honour, we do, but what we say is that for the legislature to single out and target directly and solely one individual by reference to his individualised sentence imposed by the Supreme Court of Victoria in substance is an interference with that order, even though we do accept that as a matter of legal form it does not vary, alter or set aside that order.

It is an extraordinary regime, and we say in that respect it has a parallel with Kable.  Of course Kable itself concerned a regime which ultimately was enacted in a general way, in a generally applicable way, and this Court said in Fardon that a scheme of general application that achieved the same thing that was achieved in Kable but for a general class was not a violation of Chapter III, but to do that general preventive detention regime for one person was a violation of Chapter III.

BELL J:   Does it depend on the numbers because in Crump you had a closed, identifiable class of 10. 

MS WALKER:   It is an interesting point, your Honour.  Ten is the number that is bandied about although it seems that no one was quite sure what the number was. 

BELL J:   Put it this way - it would not have been difficult for anyone to ascertain the number and the class was closed.

MS WALKER:   That is right, your Honour.  We say that that nonetheless is not ad hominem legislation because it was a class of people.  It was a law that was framed in terms of a general application, even though it applied only to a closed class.  We further note that no ad hominem argument was made in Crump itself. 

An ad hominem attack on the general scheme of which the Crump legislation formed a part was made in Baker.  In Baker very squarely the claim was made that this was ad hominem legislation of the kind considered by the Privy Council in Liyanage and the majority in that case – I do not know if your Honours wish to go to it, but at paragraph 50 referred to that argument that the legislation was ad hominem and expressly said that:

it could not be said that the appellant was the sole and direct “target” of the 1997 Act, so it is unnecessary to determine what would have been the consequences of such a conclusion.

So what we are saying, your Honour, is that the question of whether targeting 10 people – let us assume 10 is the figure – was considered by this Court in Baker, and the Court said no, that does not engage the Liyanage‑type principle and does not engage the principles around ad hominem legislation but expressly put to one side and regarded as different the circumstance where the legislation made the prisoner the sole and direct target of the Act.  We say that is the territory we are in.

BELL J:   I understand that.  I am just directing your attention to what is the difference.  If legislation is expressed in general terms but clearly applies to only two people forming a closed class, is it an abuse of language to call that ad hominem?  It is difficult to discern as a matter of principle when one is dealing with an identifiable, small, closed class why the way the legislation is framed, as opposed to having a schedule naming the six, eight or 10 people should make a difference.

MS WALKER:   Well, I think if there was a schedule naming the persons, then one would be in the category of ad hominem, but if it is just ‑ ‑ ‑

BELL J:   What is the difference?

MS WALKER:   For our purposes, your Honour, and bearing in mind the nature of the first argument which is that to enact legislation of this kind derogates from the institutional integrity of the Supreme Court, we say there is a particular vice in naming the individual by reference to his sentence because you have an express parliamentary targeting of the sentence and it is that, we say, that reflects the interference, if you like, in substance and certainly the impact on the institutional integrity of the court bringing in to some extent the question of public confidence.

Can I perhaps test the matter in a slightly different way?  If Mr Knight, for example, had been sentenced for seven counts of murder on 1 March 2017, with a non‑parole period of 27 years, and on 15 March 2017 Parliament passed a law that said “Mr Knight, sentenced on 1 March 2017 to life imprisonment for murder shall have a non‑parole period of 50 years”, we would say that would plainly be an attempt to reverse the sentence.

Now, I accept of course that is not the terms that the legislature has chosen here but we say it is the effect that the intended and actual effect of section 74AA is to reverse the non‑parole period of 27 years in substance accepting, as we must or as we do, that this legislation is not in the form where it says the sentence is altered but we say the effect of it is so dramatic and that by singling out the plaintiff and his sentence in the legislation the Parliament has undermined the institutional integrity of the Supreme Court.

Your Honour Chief Justice Kiefel asked me earlier about what we say about Crump and whether we seek to reopen it.  It may be apparent from what I have just said that we are, in principle terms, accepting Crump for the proposition that the imposition of conditions of this kind on a prisoner does not in terms of its legal effect alter, vary or set aside the sentence.  What we have sought to say is that the singling out of Mr Knight by name and by reference to his sentence takes us out of the Crump territory, so to speak. 

If we are wrong in a sense about our ability to distinguish Crump, we would say that this argument really only arises if the Court views the Crump legislation as ad hominem in its nature because if Crump is understood as validating or upholding the validity of ad hominem legislation that singles out an individual by reference to his or her sentence, then we do confront a problem with Crump.  But as I have indicated, our first argument is that this legislation, 74AA, is really quite different from the legislation considered in Crump.

BELL J:   In Crump at page 15, paragraph 22, the Chief Justice described the legislation as having an ad hominem component by reference to the objects of the provision which had been made clear in the second reading speech, which identified Mr Baker and Mr Crump by name.

MS WALKER:   That is correct, your Honour.  What we say about that is that firstly Chief Justice French did not say the legislation was ad hominem.  He said it has an ad hominem component and he identified that ad hominem component not in the terms of the legislation but in the second reading speech, and in the second reading speech it is correct that the relevant Minister mentioned two of the persons in the class of persons to whom the legislation applied.  Notably, he did not mention every single person, just two of those persons and yet plainly the legislation in issue in Crump, section 154A, was not directed solely at those two named individuals.

So, what we say about Crump in relation to the issue of ad hominem is firstly that Chief Justice French should not be understood as basing his decision on the proposition that section 154A of the relevant New South Wales legislation was ad hominem legislation. He did not say that and we say he was right not to say that.

The second point we would make is that the plurality decision in Crump simply did not refer to the ad hominem nature of the legislation at all.  That might well be because there was no real argument put to the Court that the legislation had the vice of being ad hominem.  I cannot speculate but the fact is that the plurality in Crump did not say this legislation is ad hominem but, nonetheless, it is valid. 

Then we point, as I already have, to Baker to say, in fact in Baker was the same 10 persons affected by the regime and the Court – the plurality – quite expressly singled out or distinguished the regime in consideration in Baker from legislation that solely and directly targeted an individual reflecting, we say, the proposition that there is a real and we would say significant difference between section 74AA and section 154A of the New South Wales regime.

Reluctantly then I come to your Honour the Chief Justice’s question about reopening.  Again, can I emphasise, we really only say this if Crump is understood as rendering valid legislation that singles out and names a particular individual by reference to their sentence.  It is difficult, I think, to say that that is how Crump should be understood because the legislation simply did not do that. 

But we do say if from Crump one draws the proposition that it is open to the Parliament to alter and make more burdensome the conditions of parole for a person by reference to an ad hominem regime directed only to that person then we would say it is wrong and we would seek leave to have it reopened.

GORDON J:   Does that extend to paragraph 60 of the plurality judgment where they set out, in a sense, the propositions that they see as a complete hurdle or a complete bar to the argument about the invalidity, that is, nature of parole, the importance of the total sentence.  You would have to overturn that line of reasoning as well, would you not?

MS WALKER:   We would say not necessarily, your Honour, because what we – the way we seek to characterise what was said in paragraph 60 is that their Honours there are considering what they refer to as the practical reality, including the prospect of legislative and administrative changes in the parole systems and, although it is not said ‑ ‑ ‑

GORDON J:   It goes further than that though, does it not?  What it says is picking up Bugmy, Power and all those other authorities we referred to earlier that the mere fact that you have sentencing determination in the form we have here gives you no right to parole, gives you no entitlement to it, it gives you no precondition to the form it is going to take.  All it provides you is a factum upon which you would operate if and when the time arose.

MS WALKER:   Yes.  We do not seek to reopen any of that, your Honour.

GORDON J:   You will have to, will you not?  I mean, otherwise I do not understand how that the fact that it refers to one person alters any of that.

MS WALKER:   Well, it is not so much I suppose that the fact that it refers to one person as a matter of law alters any of that.  The plaintiff does not claim an entitlement to be released upon parole.  He does not claim an entitlement to be considered for parole by reference only to the parole regime as it stood in 1988 when he was sentenced. 

If, for example, as Justice Nettle and I discussed earlier, if there was a law of general application that applied to a class of persons that contained the plaintiff and that altered and made more burdensome his parole, he would accept that, on the basis of Crump, that is valid and that the legal effect of section 74AA, if it was a law of general application, would not be to impeach, set aside, alter or vary the sentence.

The complaint he makes is that when Parliament chooses to single out one person by reference to the sentence imposed on that person, in really quite a politically charged context ‑ the second reading speech we draw on there ‑ that that undermines the institutional integrity of the court that is being targeted by the legislation.

GORDON J:   The court is being targeted.

MS WALKER:   Well, the court is targeted because it is the sentence of the court that is one of the express aspects of section 74AA(6) identified in the legislation. So, we do say the legislation in that sense, targets the court through the mechanism of targeting the sentence imposed by the court and that, we say, is the vice.

EDELMAN J:   So, is the legal principle that you say gives rise to the vice of what you are describing as ad hominem legislation, that you say it is, one, expressed as a matter of form and, two, to alter the effect of a judicial decision, or judicial decisions that are only in relation to the parties before it?

MS WALKER:   Yes, your Honour, I think that is a reasonable summary of the way we would seek to put the case.  I should make clear we do not say that all ad hominem legislation would be problem.  As I have indicated, the legislation in Duncan, for example, did not target any judicial activity.  In contrast of course in Kable, the legislation did involve the Supreme Court by drawing the Supreme Court in.  So, what we say is that this is a different category again.  It operates on and by express reference to the sentence imposed on Julian Knight.

BELL J:   So that it would not have been objectionable on this argument, had it made clear that the jury in Knight, to whom it was directed, was Julian Knight of this date of birth, formerly resident at X address.

MS WALKER:   Well, your Honour, by singling out Julian Knight as the prisoner, we would say, I think, but we do not need to say this I suppose because the legislation does expressly refer to the sentence and we say that is a particularly bad feature of it, but had it only referred to the prisoner Julian Knight, we would say there would still be a sufficient connection with the exercise of judicial power by the sentencing judge, even if the sentence was not referred to.

BELL J:   I am just trying to understand the significance to your argument of the fact that the means of identifying the target of the legislation is the sentence.  You accept that in relation to those persons who were sentenced by the Supreme Court of Victoria for the murder of a policeman and in respect of whom a minimum term was imposed, the amendments to the Corrections Act which make more burdensome the prospect of their release at the expiration of the minimum term, cannot be said to in any way trench on the order of the court in each case.

MS WALKER:   We do accept that, yes.  So I suppose because we are presented with an Act which both names the prisoner Julian Knight and identifies him by reference to the sentence, we say both of those things are relevant.  If your Honour is asking me would we still be here if the Act just said Julian Knight, date of birth, whatever it is, perhaps we would still be here.  But in fact what we have is a legislative singling out of the prisoner by reference to his sentence. 

I suspect I cannot advance it very much more than that.  That is what we say is troubling about this legislative regime, is that it is a legislative targeting of not just the prisoner Julian Knight, but the sentence to which he was imposed.  It happened just before that minimum term was due to expire, with a very deliberate and articulated purpose of ensuring that upon the expiry of that minimum term he would not be eligible to be released on parole, unless of course he was in imminent danger of dying or incapacitated, et cetera, but the agreed fact is he is not, and it was known at the time that he was not.

I do I think still need to address your Honour the Chief Justice about overruling Crump.  As I say, we are not urging this upon the Court because we do not think we need to, but if it were the case that Crump is an obstacle to the way in which we have articulated the argument, then we would say that leave should be given, partly because we would say in this context, insofar as we are talking about understanding Crump as directed to ad hominem legislation, one could not say that Crump rested on a principle carefully worked out over a succession of cases.  In fact, there has been so little ad hominem legislation involving in some way the judicial branch that we would say really it is relatively unique.

We would also say that to the extent it is understood as authorising ad hominem legislation, it has not been independently acted upon in a matter which militates against reconsideration.  In fact, the only ad hominem acting upon Crump, if you like, is this case, 74AA, at least so far as we are aware, and ultimately we would say that fundamentally it is appropriate for this Court to faithfully apply the Constitution, that is, if the Court is persuaded that our argument about ad hominem legislation is right but considers that Crump is an obstacle by way of precedent to acceptance of that argument, we would urge the court for those reasons to depart from Crump.

KIEFEL CJ:   But if it is taken that Crump says nothing of substance about that then you have no argument about overruling Crump.

MS WALKER: Precisely, your Honour, yes. And can I reiterate that, because we have focused very much on the fact that subsection (6) of section 74AA both names the plaintiff and identifies him by reference to the sentence, there truly was no section like that in the New South Wales legislation. The legislation was, we would say, relevantly and significantly different. So it is very much a fall back argument, your Honour, not one that we urge is necessary.

Can I then come to the second contention, which concerns the participation of judicial officers in the Parole Board. I am now on to the second page of the oral outline. We say, your Honours, that by authorising sitting judicial officers to participate in the exercise of the function conferred on the Parole Board by section 74AA, the section enlists those judicial officers in a function that is repugnant to or incompatible with the exercise of federal jurisdiction by the courts of which those judges are members.

GAGELER J:   Which section does that?

MS WALKER: Well, in a sense I suppose it is a combination of sections. Section 61 of the Corrections Act provides for the composition of the Parole Board and provides, of course, for the appointment to the Parole Board of sitting justices of the Supreme Court, the County Court and the Magistrates Court of Victoria, and as a matter of fact there are at present a sitting County Court judge and seven magistrates. So those persons are members of the Parole Board. Section 74AA provides, in subsection (3):

After considering the application, the Board may make an order under section 74 ‑

for the release on parole if it is satisfied of the relevant criteria.  So it is by way of a combination of sections, your Honour, but ‑ ‑ ‑

GAGELER J:   If I can just put my question this way:  accept everything you want to say about there being a Kable problem with the composition of the Board, how do you sheet that home to section 74AA but save section 74 and any other parts you want?

MS WALKER: The proposition is this, your Honour: there is no contention that the Parole Board constituted by the Act and under the Act prior to the enactment of 74AA involved any invalidity. So the plaintiff accepts that. It is constitutionally permissible for sitting judicial officers to participate in the Parole Board and participate in decisions by the Parole Board. It is the conferral of the function under 74AA that, in a sense, causes the problem, if there be a problem – I understand, of course, we have, in a sense, leapt ahead slightly – but if one assumes that the ad hominem – can I pause for a moment actually, just to be upfront about this, this is also based on the ad hominem nature of section 74AA?

If that ad hominem function causes the function to be one that is incompatible with the judge’s role as a sitting judge of a court that is a recipient of federal jurisdiction, then we would say that what fails is in a sense the amending Act and the insertion of section 74AA and not the broader provisions that authorise the appointment of those two judicial officers to the Parole Board.

Really that would be partly as a matter of identifying the amending Act itself in a sense as being the exercise of legislative power that was constitutionally invalid and partly perhaps also by way of saying that section 74AA can and should be severed because I think it would be fair to say that the legislature would not have intended that its parole regime which envisages a role for sitting judges would, as a consequence of inserting section 74AA, fail insofar as it then was no longer permissible or valid for those sitting judicial officers to remain members of the Parole Board and to continue to exercise functions as part of that Parole Board. I hope that answers your Honour’s question.

Now, can I perhaps just as a way of introduction to this aspect of the argument indicate to your Honours that there is a degree of common ground between the plaintiff and the first defendant in relation to the principles that are relevant to the second contention.

Firstly, I think it is fair to say that the parties agree as to the general way in which the Kable principle is to be articulated and we would say that by reference to the respondent’s submissions at 44 to 45 and the plaintiff’s submissions at paragraph 19.

It seems I think also that the parties agree as to the effect of Wainohu, namely that the Kable principle operates not only in relation to the conferral of functions on State courts but also operates in relation to the conferral of functions on State judges as persona designata.

KIEFEL CJ:  Assuming you are right about the effect of conferral of those powers on judges as persona designata, why do you say you cannot read section 74AA and its reference to the Board so as to exclude judges exercising federal jurisdiction from courts?

MS WALKER: Your Honour, we say that there are two reasons really in response to that. It is put against us that really if there is a problem here one could just read down section 74AA. In response to that, we make two propositions.

Firstly, we say that part of the vice – and so this does assume to some extent the nature of the constitutional problem – is the authorisation of sitting judicial officers as members of the Board to participate in this exercise of power.  Reading down, we say, does not fully cure that vice because one is left with a Parole Board that is the entity or the organ charged with making the decision and it is an entity that has, as a matter of fact and legal authority, judicial members as part of it.

So even if a judicial officer was not permitted to participate in a decision under section 74AA, what one is left with as a matter of public appearance is a decision of the Parole Board which contains judicial officers and may contain in the future justices of the Supreme Court, for example.

So there remains, we would say, a connection between the judicial officer, who remains on the Parole Board, and the decision of the Parole Board which, as it happens, did not involve actual participation by that judge.  But part of the vice, we say, is the appearance – and we do emphasise that there is no suggestion of any actual lack of independence or impartiality on the part of those judicial officers but the appearance that those judicial officers are not independent of the executive branch because they remain members of the body charged with making the decision.  And the niceties of reading down simply may not be apparent to those who see an order of the Parole Board or a decision of the Parole Board and understand that the Parole Board has, as members, judicial officers.

And can I refer, perhaps, to the remarks of Chief Justice French in the International Finance Trust Case where his Honour observed that one does have to be careful in the way one construes legislation by applying a legal gloss because the legislation nonetheless has to be able to be read and understood by those who are observing and those who are affected by it as well, of course.

So to say that section 74AA can be read down so that when it says “the Board” it does not mean “the Board”; it means “the Board without judicial officers”. We say, firstly, it does not at least fully cure the vice. But, secondly, we would say that it is not entirely plain to us or at least it does not seem to us that there is but one way to read down section 74AA. And so that what the Court would be being asked to do may well travel beyond, effectively, the judicial task and to trespass into the legislative task, which is to choose from one of a number of ways the Act could be read down.

It might be that when one, as in Wilson for example, read the provision that conferred an ability to confer a reporting function on a person, one read “person” not to mean all persons but to mean all persons except a judge, one might say, well, here, when one reads “the Board”, one just understands that not to mean “the Board” but to mean “the Board, not including a judicial officer”. But an alternative pathway might be the Board must constitute itself in a division that does not include a judicial officer for the purpose of making the decision under section 74AA and that appears to be the course of action taken by the second defendant I think in this case.

GORDON J:   That is the way the sexual offenders provision is drafted.

MS WALKER: Precisely, and that is the other point that we would make, your Honour, is that the Act itself contains direction when there is to be a particular division with a particular composition. And that for the Court simply to say, “Well, we can read down section 74AA”, really is not to pay sufficient attention to the manifest legislative intention that the decision under section 74AA is to be made by the Board and need not be made by a division, let alone a division constituted in a particular way.

So we do say that there are those two reasons why reading down just is not a complete answer, or an answer, to the proposition that we put.  That, of course, means then that I need to go back to make good the proposition that the conferral of a function of this kind would transgress the Kable principle.

KIEFEL CJ:  And the basis upon which you say it does that is that it gives an appearance of the court and its judges being involved in this process?

MS WALKER:  We do say that, your Honour, yes.

KIEFEL CJ:  Is this the same public confidence point that you referred to earlier?

MS WALKER:  It has an element of that, and certainly the way in which the authorities have considered ‑ there are a number of authorities which support the proposition that, when considering the conferral of functions of this kind on judges as persona designata, one is concerned not only with actual independence and impartiality but the appearance of it.  To that extent, it does, I think, draw in issues of public confidence but we rest it more on the proposition that the court is properly concerned with the appearance ‑ ‑ ‑

KIEFEL CJ:  Is there any case on which you rely which says that directly, that appearance is sufficient to contravene – in effect that appearance is sufficient to contravene the principle?

MS WALKER:  Well, the answer to your Honour’s question may be again, I am afraid, slightly long in this sense.  We say that one who establishes that one is in the territory of the incompatibility doctrine developed in the context of the conferral of non‑judicial functions on Chapter III federal judges and from that, and specifically by reference to the way in which the entire court, I think, in Wainohu dealt with the earlier case of Wilson, we do say that Wainohu supports the proposition that an appearance of a lack of independence or impartiality is at least significant.

I would accept in Wainohu the regime was different but it might assist perhaps if I could take your Honour to some of the passages that we rely on in Wainohu (2011) 243 CLR 181. I think the statement that we particularly rely upon in terms of the plurality in that case adopting the approach of Justice Gaudron in Wilson can be found at page 225 of Wainohu.  This is a judgment of Justices Gummow, Hayne, Crennan and Bell.

Your Honours will see at paragraph 94 a specific adoption of some remarks made by Justice Gaudron in Wilson.  So if I could just pause before going to them, Wilson of course was, as I have indicated, a Chapter III separation of powers case, not a Kable case, but in Wainohu we see the plurality adopting the approach from the federal sphere, if you like, and applying it ‑ ‑ ‑

KIEFEL CJ:   I suppose we should give the citation for Wainohu ‑ we have been a little remiss this morning – 243 CLR 181.

MS WALKER:   Yes, thank you, your Honour.  So, at paragraph 94 on page 225, your Honours will see the adoption of what Justice Gaudron said in relation to three relevant statements of principle, and she said that:

the confidence reposed in judicial officers “depends on their acting openly, impartially and in accordance with fair and proper procedures . . . And, just as importantly, it depends on the reputation of the courts for acting in accordance with that process.”

 . . . 

“In general terms, a function which is carried out in public . . . [and which is] manifestly free of outside influence and which results in a report or other outcome which can be assessed according to its own terms, will not be one that gives the appearance of an unacceptable relationship between the judiciary and the other branches –

 . . . 

“there may be functions . . . which do not satisfy these criteria but which, historically, have been vested in judges in their capacity as individuals and which, on that account, can be performed without risk to public confidence.  However, history cannot justify the conferral of new functions on judges in their capacity as individuals if their performance would diminish public confidence in the particular judges concerned or in the judiciary generally.”

So that I think is one of the best examples, your Honours, of where there has been an adoption by a majority of this Court of the statements and approach of Justice Gaudron in Wilson where her Honour is clearly concerned with the appearance of impartiality that is necessary for the judicial branch effectively to perform its function and, relevantly for State courts, necessary for the State courts to properly and effectively perform their function in exercising federal jurisdiction.

KEANE J:   Do you accept that this argument could be avoided if the State were to simply enact that the Corrections Act 1986 does not apply to Julian Knight?

MS WALKER:   This part of the argument, yes, your Honour, because it turns on involving judicial officers in the ad hominem decision about what is to happen to Julian Knight.  So, if the Parliament excluded the Corrections Act, then plainly no judicial officers – well, assuming it did not replace it with a regime involving judicial officers, then this part of the argument would fall away.  I would not accept that the first part of the argument would fall away.

GAGELER J:   This part of the argument, just focusing on your paragraph 2(d) which contains four dot points, as I am understanding it, it really is only the second point that you are emphasising.  The other points, surely, apply to other decision‑making generally under the Act.

MS WALKER:   They do, yes.  So, I suppose we say, though, it is a cumulative effect.  So, the first dot point and the last dot point are both features of the general parole regime with which we take no issue.  But, when one superadds onto that the second and third dot points, we say the cumulative effect – perhaps, the greatest weight is placed on the ad hominem point, but the cumulative effect is to produce participation in a regime that undermines the appearance of independence from the Executive.

Can I say, your Honour, it is not just dot point 2 because we do say there is a construction issue around the role of the report of the secretary in a decision under section 74AA which I foreshadowed when I was taking the Court through the legislation. There are a number of sections in the Corrections Act where the Board is directed to have regard to something or consider something.  Of course, that is uncontroversial.  The specification of a mandatory relevant consideration is a common feature of legislation.  But, the language used, we say, in 74AA is not of that kind.

The Board is directed to reach a state of satisfaction about certain matters on the basis of a report by the secretary. That difference in language, we say, is significant because at least it suggests that the decision is not – to use the words of Justice Gaudron – not “manifestly free of outside influence” because of the special position given to the report of the secretary. It might, depending on how the provision is construed, go so far as to control the Board’s state of satisfaction by reference to the secretary’s report – that is, if one considers the language of section 74AA(3), it is difficult to see how the Board could be satisfied of those matters on the basis of the secretary’s report if the secretary said those matters are not correct.

The language of “on the basis of”, we say, gives at least influence, if not control, over the Board’s satisfaction to the secretary.  That, we say, is an additional factor, coupled with the ad hominem nature of the regime, that enmeshes, or enlists, the judicial officers in an exercise which is not manifestly free of outside influence.  It is not manifestly independent of the Executive.  That is so, whether or not the secretary participates in the Board’s decision because the secretary’s report is given this central role. 

GORDON J:   What do we do about section 71 which is, as I understand it, an ability for them to make their own inquiries?

MS WALKER:   Your Honour, plainly, they appear to have the ability to obtain information in a variety of ways and, in fact, have requested additional information. But we say that that does not expand or alter the precise language adopted in section 74AA which is that they must be – the Board must be satisfied on the basis of the report of the secretary. Can I, perhaps, elaborate a little?

GORDON J:   I should also say there is 71A as well, the power of compulsion.

MS WALKER:   Yes, indeed, and we do not deny, your Honour, that as a general proposition the Board has the ability to obtain information but section 74AA when one considers it more precisely than I have been doing, and I apologise, subsection (3) says:

After considering the application, the Board may make an order . . . if, and only if, the Board –

(a)is satisfied (on the basis of a report prepared by the Secretary . . . that the prisoner –

(i)is in imminent danger of dying . . . 

(ii)has demonstrated that he does not pose a risk to the community –

Those are the things about which the Board must be satisfied on the basis of the report by the secretary, but subparagraph (b) is not tied to the report of the secretary.  It is a requirement if, and only if, the Board:

is further satisfied that, because of those circumstances, the making of the order is justified.

So, to tie that back to your Honour’s question, plainly there is an aspect of 74AA which is not tied to or not required to be decided upon the basis of the secretary’s report and for that plainly the ordinary powers could be utilised to obtain information. But, we say, subsection (3) is really quite precisely drafted. It uses language that is quite different from section 74AABA to which I took your Honours at the outset where the Board was told to have regard to a report from the secretary. We would say a deliberately different choice of language. I also pointed your Honours to section 74B, how does the Board deal with victim submissions? The Board must consider any victim submission and may give that submission such weight as the Board sees fit.

So, we would say that the Act contains plainly some provisions directed at a simple, mandatory relevant consideration and that 74AA(3)(a) is different in terms and, we would say, different in effect in that it gives the secretary at least influence and, if not, actual control over whether the Board will reach the state of satisfaction required by that subsection.  So, we say, that is an additional factor to the ad hominem nature of the regime.

Now, I am sure I have made this clear but the plaintiff accepts that non‑judicial functions can be conferred on State judges as persona designate, and that is apparent from the authorities, but it is equal apparent, we would say, that there is a limit to the nature of the functions that can be conferred on State judges and we say that the relevant test is that articulated in the federal context particularly by Wilson but one can also go back to Grollo v Palmer for example which is incompatibility being a function that is of such a nature as to undermine the appearance of independence of the court or the judge from the executive branch.

Can I perhaps, your Honour Chief Justice Kiefel asked me about authority for that and I took the Court to the plurality in Wainohu, could I just also mention some remarks from Wainohu in the judgment of Chief Justice French and Justice Kiefel at paragraph 48 where, after referring to some remarks of Justice McHugh in Kable, your Honour the Chief Justice and Chief Justice French said that incompatibility:

may arise where there is a substantial impairment of the essential curial characteristics of independence and the appearance of independence from the executive government.

So, we say that is again supportive of the argument that we seek to put that really when one puts together the plurality and the judgment of Chief Justice French and Justice Kiefel in Wainohu, that there is authority for this proposition.

GORDON J: Can I ask you one question about section 61(8) in the context of your contention about judicial functions.

MS WALKER:   I am sorry, your Honour, section 61?

GORDON J:   Subsection (8) which is dealing with judicial immunity for the functions carried out by the judges in their capacity as a member of the Board.  Subsection (7) deals with them as a member of the Public Administration Act, if you are not a judicial officer; subsection (8) deals with you in your capacity as a judge and says that your service is to be regarded as service as a judge, I assume to pick up judicial immunity.

MS WALKER:   Yes, I think that is right.

GORDON J:   Do you make anything else of that provision?

MS WALKER:   No, we do not, your Honour. We do not say it has any significance really either way, either for or against us. Now, your Honours, it is put against us that because no judicial officer has to date been involved in any decision under section 74AA that the matter is in some respect hypothetical or not ripe for determination. In addition, I suppose, it is also said, well, a judge might never be involved. That truly is a hypothetical proposition.

We would say at the outset, there is no challenge to the plaintiff’s standing to bring this case. There is no suggestion that there is no matter. Plainly, the plaintiff has put in issue the validity of section 74AA and if we are right that there is a constitutional vice in that section by reason of the authority conferred on sitting judicial officers to participate in the 74AA decision‑making, then we would say the matter is ripe for decision.

BELL J:   Does that depend on the success of your argument that the particular regime under that provision excludes the requirement under the serious violent offenders provision which otherwise cuts in and requires a determination by the Board constituted by a division which does not have a sitting judicial officer?

MS WALKER:   No, I do not think it does, your Honour, because the SVOSO division must always act on the recommendation of another division and so it remains possible that another division has participated in the regime. Certainly, I would accept that our principal argument is you can put to one side the SVOSO regime because we say section 74AA is the sole section dealing with parole for Julian Knight but we would say that the argument is not precluded by reference to the SVOSO regime.

We also say, your Honours, in relation to this argument that, to the extent that the decision‑making process has stalled and has not been resolved for the application made by the plaintiff under section 74AA, that that inaction by the Board ought not now be permitted to found an argument that the matter is not ripe for determination. The plaintiff has done all that he is required to do and can do under the Act to have his application resolved. He has lodged the application and we would say that it is not now appropriate for the defendant to say, well, we have not done anything,

therefore your matter is not ripe for determination and we certainly do say that it is not hypothetical in nature.

GAGELER J:   Why is it not hypothetical?

MS WALKER: Because the conditions for the plaintiff’s parole have been altered immediately upon – or in fact immediately prior to his achievement of the minimum term period. So section 74AA is in fact in operation and if a vice in that section is that it authorises judicial officers to participate in that process, we would say that vice is present now regardless of whether those judicial officers have yet participated in that activity and partly I said I think in relation to the question about reading down that we do say it is the involvement of judicial officers in the Parole Board that is part of the vice of 74AA even if they have not yet participated, that the vice is there already and that vice is ‑ ‑ ‑

GORDON J:   Is not your short point that the application remains the subject of consideration by the Board and the Board can comprise judicial officers?

MS WALKER:   Yes, indeed.  Thank you, your Honour.  If there are no further questions, those are the submissions for the plaintiff.

KIEFEL CJ:   Yes, thank you.  Solicitor for Victoria.

MR NIALL:   If the Court pleases.  Your Honours should have to hand our outline of oral argument which is divided up into the two parts reflecting the plaintiff’s submissions, the first one dealing with the interference alleged in respect of Justice Hampel’s decision and the second in relation to the composition of the Board.

If the Court pleases, can I deal with the first contention first. In our submission, there is in section 74AA no interference with Justice Hampel’s order. It is a matter of both form and substance. It did not affect let alone vary the order of the Supreme Court on the sentence and in that respect the case is indistinguishable from that determined by the Court in Crump.

Before coming to the terms of the order of Justice Hampel, can I take your Honours immediately to the decision in Crump in two paragraphs. The decision is reported at 247 CLR 1. Can I take your Honours immediately to paragraph 53 to identify the argument or the complaint that was made in that case. Your Honours will see at paragraph 53 of the report it was said that 154A, which we interpolate in the same terms relevantly in its operative effect:

had the effect of stultifying the benefit or entitlement accorded to the plaintiff by the decision of McInerney J, the benefit or entitlement being that the plaintiff would be eligible for release on parole on 13 November –

Your Honours will see a copy of the form of the order of Justice McInerney at paragraph 14.  Your Honours know the history that led to this form of order in the series of legislative amendments in New South Wales.  Can I just note in terms of the order which is recorded in the Chief Justice’s judgment at paragraph 14 that there was a determination of a minimum term for the murder of Mr Lamb and the words appearing:

Crump will be eligible for release on parole on 13 November 2003 -

the Chief Justice says about that near the end of that paragraph that it was not part of the resentencing determination.  In effect, it was a comment or an observation about the operation of the order.  But putting that to one side, that was the order that his Honour Justice McInerney made and I have identified the complaint.

Paragraph 60 summarises the principle and conclusion that was applied.  I will not take your Honours to the proposition but their Honours in the joint judgment say - their Honours firstly note that matters can be had to substance as well as form.  Can I just stop there for one moment.  In this area of discourse where the complaint is interference with an order of the court, an order of the court only has legal effect, though it is legally operative.  So there has to be some interference with its legal operation. 

In that respect it is important, although Chapter III is of course concerned with both substance and form.  The plaintiff here does have to identify an intersection with the legal effect of Justice Hampel’s order.  Their Honours go on to refer to the practical reality of sentencing judges and “the prospect of legislative and administrative changes in parole systems” and this is critical:

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 ‑

and then their Honours go on to conclude at the top of page 27:

Section 154A did not impeach, set aside, alter or vary the sentence under which the plaintiff suffers his deprivation of liberty.

Now that is a very comprehensive statement which, in our respectful submission, is dispositive of the case.  Can I just note at this point, in terms of the foundation stone for that paragraph in Crump, it is a series of judgments of this Court in relation to the nature of minimum term, including Power, Bugmy, Elliott and Baker.  So it was not a new proposition or a new principle based on any novel proposition.

Can I take your Honours very briefly to the order of Justice Hampel and your Honours will see it most conveniently at page 40 of the special case book.  Your Honours will see that the sentence was on each count, life on each of the seven murder counts and 10 years on each of the 46 attempted murder counts, and then his Honour set a minimum term of 27 years fixed before being eligible for parole. 

Now, that parole provision of the order reflected the terms of section 17 of the Penalties and Sentences Act which your Honours have been taken to.  Can we make the submission that in a sense the reference to parole is a negative proposition.  It identifies the period where the person cannot get parole.  It says nothing about, other than by negative implication, the circumstances, opportunity, prospect of whether or not the prisoner will be granted parole after that period. 

That reflects fundamentally an important aspect of the minimum term.  It is the court recording as a negative that parole is not available before the expiration of the 27‑year period.  So, in that sense, there is a single sentence of imprisonment for life with two points of reference:  the minimum term expressed as a non‑parole and the second the maximum, which is life.

Now, nothing has affected that.  He remains in prison, pursuant to the order.  Even if he were granted parole, the plaintiff would remain under sentence for life and the minimum term has now expired.  Can we make three short points by reference to authority about the nature of the minimum term.  The first is that the role of the determination of the minimum term is for the Court to declare the amount of time that justice demand the person serve.  That is the first point we make about the minimum term. 

The second is that common with parole generally it operates as a factum or trigger upon which any legislative entitlement to parole or licence could operate.  The other aspect of the sentence is that judicial power was then exhausted.  There was nothing to return in respect of the prisoner to court. 

So can I deal with those propositions, starting with the judgment of this Court in Power 131 CLR 623. In a sense, it represents a starting point of principle upon which Crump is one of a number of cases.  Your Honours will see the issue that was determined or raised for consideration in this Court on page 625.  It concerned an approach taken by the Court of Criminal Appeal of New South Wales as to the proper role of a minimum term.  Your Honours will see, in the first full paragraph of the joint judgment, that the Court of Criminal Appeal had said that:

the judge sentencing the prisoner, in fixing a non‑parole period, should not fix what he regards as the minimum period of confinement that he thinks justice requires to be served but should, rather, in general fix no longer a period than the short time that he considers would suffice to enable the paroling authority to form a proper opinion -

So that was the sort of lie of the land about the role of the minimum term.  This Court rejected the second and accepted the first and your Honours will see that on 628.  Starting at point 2 on the page, in large part what was informing the argument was the role of rehabilitation where the sentence is almost purely rehabilitative or whether it serves a punitive aspect and the idea that the non‑parole period was punitive and the balance was entirely rehabilitative and the sentencing judge would adjust it, depending on the two.  Their Honours rejected that, noting or concluding, at about point 2 on the page:

Confinement in a prison serves the same purposes whether before or after the expiration of a non‑parole period and, throughout, it is punishment, but punishment directed towards reformation.  The only difference between the two periods is that during the former the prisoner cannot be released . . . whereas in the latter he can.  In a true sense the non‑parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.

His Honour Justice Hampel identified that as the purpose in the present case by reference to authorities, including Power.  Their Honours note, at the bottom of that page, 628, the clear separation between the judicial and parole and their Honours note, at about point 8 on the page:

To interfere with that sentence is not within the authority of the paroling authority.  Its authority is to release the prisoner conditionally from confinement in accordance with the sentence imposed upon him.  The sentence stands and during its term the prisoner is simply released upon conditional parole.  Indeed, we think it is a misnomer to refer to a minimum sentence and a maximum sentence.  In truth there is but one sentence, that imposed by the trial judge, which cannot be altered by the paroling authority.

Again, that remains true, albeit that minimum term has a statutory term, it remains that there is a single sentence, in this case, for life.  Their Honours, in rejecting the construction of the Court of Criminal Appeal, made an observation which, in our respectful submission, is apt in the present context, is that it would be inapt for a judge to form views about likely prospect on rehabilitation and parole.  Your Honours will see that in the middle of 629:

The new‑found limitation –

that is the reference to the Court of Appeal:

upon the function of the sentencing judge is, in our opinion, unsound and would require not the exercise of a judicial discretion but the making of an administrative guess.

What their Honours are there directing attention to is the quite distinct roles between sentence and parole and, importantly, the last point of the report is that their Honours contrast legislation that existed in South Australia and Queensland where – and this is the last paragraph on 629:

the power to determine how much of a sentence of imprisonment shall be served by a prisoner, has been given almost entirely to the paroling authorities –

So it was really identifying, not that the court sets a sentence and the Executive then determines at any point in time.  Here, the scheme is the court sets a term which must be served and thereafter the prisoner falls to be determined in accordance with the statute in existence from time to time. 

That point is further emphasised and perhaps approached from a slightly different perspective in Elliott v The Queen 234 CLR 38 and, in particular, at paragraph 5. This was a case we added to the authorities – I apologise for its lateness. But, in the judgment of five Justices of the Court – and this is, of course, one of the trilogy of cases of which Baker, Elliott and Crump form – your Honours will see in paragraph 5:

Subject to the appellate system established by the Criminal Appeal Act, the exercise of judicial power with respect to the trials upon indictment of Elliott and Blessington were spent upon the subsequent imposition of the sentences upon them.  The controversy represented by the indictment had been quelled and, allowing for any applicable statutory regime, the responsibility for the future of the appellants passed to the executive branch of the government of the State.

That is critical to understanding what is lying under Crump in that the position of a person such as the plaintiff falls to be determined by reference to the prevailing applicable statutory regime at the time.

Can I just give your Honours one other reference to that determination of time and that is Bugmy v The Queen (1990) 169 CLR – in particular at page 538.  Your Honours do not need to turn to it.  So those two aspects – the determination of the minimum term and the operation as a factum or trigger – remain true for the plaintiff in this case, both before the amendments to the Act and after.

Now, in determining what happened after the expiration of the parole period or the commencement of the parole period, I should say, his Honour had no role to play during that period.  His sentence could not and did not confer a benefit or right.  It simply provided a factum or trigger upon which any legislative power could operate but only in accordance with its terms. 

Now, it is said against us that the alteration to the parole regime made the sentence more burdensome.  We reject that.  It is not consistent with the decision in Baker.  The critical point is that the determination of parole does not authorise the detention of the plaintiff.  That is really why Kable is completely in different territory - not only is it not a power given to the court or, indeed, a judge, but it is not a power of detention.  It is a power of executive licence.  The order that detains Mr Knight will always be the order of Justice Hampel requiring or imposing a life sentence upon him.

Now, in his written submissions, the plaintiff relies on a paragraph in Baker to support, as we understand it, a contention that it is impermissible to make by parole amendments the sentence more burdensome.  Your Honours will see the relevant paragraph on which he is relying in Baker 223 CLR 513 at paragraph 29 on page 528 of the report. This is dealt with in our learned friend’s submissions at paragraph 32.

Now, Baker was of concern with a change to the regime in circumstances where prisoners who had been liable to penal servitude for life had the opportunity of a ticket of leave under section 463 of the Crimes Act.  That is set out at paragraph 27, your Honours do not need to turn to it, but at paragraph 29 in the joint judgment, there is a point later made clear in Elliott that:

Upon passing that sentence the judicial power was exhausted.  Whether the offender served the sentence in prison or at large was a matter which then was to be decided by the Executive, not a court.  If the Executive exercised the power given by s 463, the offender obtained a mercy.  But in no sense (whether as a matter of substance or as a matter of form) can later legislation, altering the circumstances in which such mercy could or would be extended to a prisoner sentenced to life imprisonment, make that sentence of life imprisonment more punitive or burdensome to liberty.

The plaintiff reads that as a limitation on power but, in our respectful submission, what is meant is that having got a life sentence it cannot get any heavier.  The only question would be whether there is the capacity of the Executive, acting under statutory command, to ameliorate the term through parole or some prerogative of mercy.  That is made clear in the next sentence where their Honours go on to say:

the original sentence passed on the offender could not be and was not extended or made heavier.

While your Honours have Baker, can I just take your Honours to parts of the judgment of the Chief Justice at paragraph 8 on page 521 in relation to the ad hominem argument? In Crump the Chief Justice identified the ad hominem component of the legislation, but in the earlier consideration Chief Justice Gleeson also made some observations in relation to it, in our respectful submission.  His Honour notes in paragraph 8:

there was a limited number of prisoners serving life sentences –

The number was known and closed.  Their identities were widely known.  The Parliament decided:

they should be treated as exceptional cases.  It made special, and different, provision for them.  As a matter of legislative power, the Parliament was entitled to do so.  Senior counsel for the appellant acknowledged in the course of argument that, if Parliament had simply named the persons in question and excluded them from the operation of s 13A, then his Kable argument would not have arisen.

Now, the Kable argument in there was slightly different, or was completely different.  It concerned the meaning of whether the term “special reasons” had sufficient content to be applied by a court.  But his Honour the Chief Justice goes on to say:

It might be argued, as a matter of legislative policy, that it was unreasonable of Parliament to single out for special, and disadvantageous, treatment those prisoners who had been sentenced by judges who were willing to make non‑release recommendations . . . power is another matter.  Parliament may have taken the view that at least those people in the position of the appellant should be subject to a special regime, and if others whose crimes were just as serious were given the benefit of more favourable treatment then that would have to be accepted.

His Honour goes on to say in the middle of paragraph 9 – I will not read it all to your Honours:

It was within the power of the Parliament to select such an expression of opinion as an indication that the offending was of the most serious kind.  The Parliament was entitled to create a special regime for the most serious offenders -

In a sense, not only was the Crump legislation, Baker and Elliott, ad hominem in the sense it was a closed class; in a sense identification of the class was considerably more fickle.  In a sense it depended upon a judge making a non‑statutory recommendation for release.  Here ‑ and this is relevant to the Kable argument – Parliament has directed its attention and made it very unmistakably clear its operation.  In our submission, for the reasons given by the Chief Justice it was open to make special and different provision.

BELL J:   The plurality in Baker at page 534, paragraph 50, left the question open of what might have been the position had an individual been targeted. What do you say as to this contention?

MR NIALL:   The answer to the question is the same result would obtain and the reason for that is this.  There is no principle that the Parliament cannot make a law applying to one person, one company or one subject matter.  Applying a law to one person may be an indicator that something else is going on and it may be significant where it is directed to the exercise of judicial power and that is the classic – either interference with a particular piece of litigation or alternatively perhaps by altering the process to be applied in a particular trial or by doing what Justice McHugh and Justice Gummow in Nicholas called usurpation where that what is happening is actually the Parliament is trying, convicting and punishing.

So, you can either have – and ad hominem legislation might indicate something on that territory is occurring, that is, either usurpation of judicial power by conducting by legislation a trial or, alternatively, some specific interference.  But here, even accepting that and even accepting that that proposition reflects some constitutional limitation on the part of States – the second step in the argument – here, whichever way it is looked at, it remains a law which directs administrative action, not judicial action.  It does not blur the distinction between executive and judicial in either substance or form.

His Honour the Chief Justice in Crump referred to the circumstance where there might be – use that term blurring of the two, but when one looks at the law in its terms and in its operation, there is no blurring of the distinction between executive and judicial.  Of course, in Liyanage it was directly interfering with the judicial process, perhaps demonstrated by his Honour Justice Gummow’s judgment in Nicholas 193 CLR 173.

I am not sure if your Honours have Nicholas but I can just give your Honours – it is volume 193 and it is paragraphs 147 and 148.  I thought I saw it on a list.  I beg your Honours’ pardon.  But that was of course a case – Liyanage - where there was a direct intrusion into the judicial trial of prisoners charged with particular offences on a particular occasion.

So, just to conclude on the ad hominem aspect, in our submission here, even though it is directed to a single prisoner, it does not result in any impermissible intrusion into judicial power and it certainly does not, in our respectful submission, affect the order that Justice Hampel made on sentence.

Unless I can be of any further assistance on the first point – but just before leaving it can I make one very quick submission and that is our learned friend’s case depends on a proposition that it is impermissible for the State to intersect or interfere with judicial power.  Our submission on that is that it is necessary to determine precisely what the said interference is before one turns to questions of validity, and it is too broad a proposition to say that a State Parliament cannot interfere with, alter or vary an order of a court.  Authority for that proposition can be found in Australian Education Union v General Manager 246 CLR 117 and in particular at paragraph 85. I do not need to take your Honours to that.

That then brings me to the second contention.  Can I in the time before your Honours rise just summarise what we say about that contention?  There are a number of reasons why there is no incompatibility, but if there is a problem of a judge sitting, this Act does not require a judge to sit and the Parole Board can sit without a sitting judge in the divisions which would be required to sit in relation to a plaintiff’s parole.

I will come back to how the Act works in a moment, but can I just summarise why we say there is no incompatibility? Firstly, and fundamentally, the function is not incompatible. The function of considering parole – and this is under section 74 of the Act – is not said to be incompatible. That is so, that there is no obligation to afford procedural fairness nor reasons, but it is not incompatible because the jurisdiction is not conferred on the court, the process is executive, judicial power is spent, unlike in Wainohu, and no controversy in respect of the prisoner will return, the court process is not engaged, the process is not advisory and there is a long historical role for the participation of the courts.

So, accepting that parole is a legitimate function, in our submission, there is nothing in 74AA that leads to a different conclusion.  The reasons for that in summary are that it does not involve dictation of the Executive’s bidding, the requirement of the secretary to provide a report uses logical criteria and he or she is a logical repository of the power and information, the Board is not bound to accept any opinions of the secretary, and nor is the secretary’s report exhaustive; is in effect a mandatory consideration.  The ad hominem aspect does not alter that at all in the sense that it remains a criterion capable of meaningful application by the Parole Board on the application of this particular prisoner.

BELL J:  A serving judge might make a determination affecting liberty in circumstances in which the rules of natural justice do not apply.

MR NIALL:  That is so.

BELL J:  To take up Justice Gageler’s question earlier, does that include the bias rule?

MR NIALL:  Our submission on the bias rule is that it would not immunise actual bias, but of course one of the problems with the involvement of a judge in a warrant case, for example, might be that secrecy would preclude telling anyone that that judge had issued the warrant which might be a difficulty on bias applications if that judge was then allocated a particular prosecution or case. 

That does not arise here because the prisoner will know precisely which member of the Board is considering his or her application for parole. They participate in the process and there is no prospect in respect of the relevant controversy for the matter to return to the court. The participation of a sitting judge does not cause any difficulty in relation to parole generally or in relation to parole under section 74AA. I might just return to a couple of those aspects, if that is a convenient time.

KIEFEL CJ:  Yes, thank you.  The Court will adjourn until 2.15.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR NIALL: If the Court pleases. Can I develop the respondent’s submissions to the second contention and make some submissions about the Act and the way the Act works in relation to the allocation of members to decisions. If your Honours turn – I will not traverse sections that your Honours have already been taken to, but if your Honours start at section 61, your Honours will note a couple of aspects. Firstly:

The Board consists of‑

(a)such number of Judges of the Supreme Court as are appointed -

There is provision for associate judges, judges of the County Court and magistrates.  Your Honours will note the contrasting language with (da), which was introduced in 1991, where it refers to “one or more retired Judges”, with the consequence that the Board is to be constituted by at least one retired judge but there may not be a judge of the Supreme Court – the Act does not require it to be so. 

Can I note the contrast? When the Act was originally enacted the Board consisted of a judge of the Supreme Court who is to be a chairperson. So it required a Supreme Court judge to be appointed. That was in section 61(2)(a). There were amendments to paragraph (a) in 1991.

The history, in brief terms, extended back to the Penal Reform Act of 1956, in which judges of the Supreme Court were appointed to a parole board or equivalent, and there were obviously earlier provisions.  Since 1956, the Supreme Court judge was a member of the Board and required to be so, and that continued until 1991.

Your Honours will note in section 64 a discretion – my learned friend took your Honours to it – to exercise its powers and divisions of the Board and your Honours will see in section 64(3) that it is:

the chairperson of the Board may give directions as to the arrangement of the business of the Board and as to the persons who are to constitute divisions of the Board for the purposes of particular matters.

So there is a power and if, to foreshadow a submission I will make in due course, there is a difficulty of having a sitting judge sitting on a division in relation to 74AA, then section 64(3) would prevent that allocation occurring. So that the power to appoint or allocate the judge to a division and for reasons which I will explain in a moment the plaintiff’s application for parole will always be considered by a division, would operate at that point in allocation power.

Your Honours will see in section 69 the Board has its functions and in section 70 can I just note that the secretary who is, ex officio, a member of the Board:

must provide such employees of the Department and such other assistance to the Board - 

That is relevant to the role that the Act gives to the secretary under 74AA, because the secretary is statutorily bound to provide assistance. Under section 6A of the Act:

A person is deemed to enter the legal custody of the Secretary when‑

(a)      an order of imprisonment is made -

So the secretary occupies an important role in the sense that the prisoner is in the custody of the secretary and the secretary has a statutory duty to assist or supply the information to the Board, so it is not surprising, in our submission, as a question of construction, that the secretary should be providing a report, or the person identified as the body to provide a report for the purposes of 74AA. 

Your Honour Justice Gordon already drew attention to section 71 and I will pass over it, but it certainly supports the view, in our submission, or supports our submission that the Board can obtain information as it sees fit and has the power in section 71A to do so.

Section 74 is a critical provision because it is the power to make a parole order by instrument and it has consequences in that the prisoner must be released at that time. Of course, there is power to revoke and cancel and your Honours will note, without too much getting out of sequence of the Act, section 76 which provides that persons on parole are deemed still under sentence.

I draw attention to section 74(1) and nature of the order, to distinguish, for example, the cases such as Wilson where one of the problems in Wilson was that the report was merely advisory. It did not have any operative effect and therefore the judge who was appointed as the reporter was in effect advising without any impact of the statute provided.  Here it is clear that the Parole Board makes a determination by order with consequences.

If your Honours then – 74 is the power and can operate both generally and it also operates specifically in relation to 74AA which, in our submission, also has to be read with 74AAB.  Can I take your Honours to 74AAB, and this is the gateway to the submission that a decision of the plaintiff’s application would be by way of division.  Your Honours will see in subsection (1) that there is a particular division:

Serious Violent Offender –

and the members of that division are:

(a)     the chairperson –

Now, that is not a judge of the court, a sitting judge.  At the moment, it is a retired judge of the County Court:

(b)    one full‑time member –

and that draws back to section 61(d) and (e). So, again, not a judge, and:

(c)     any other members of the Board selected by the chairperson –

and that would again direct attention back to 64(3).  There is a particular function which is:

(2)The sole function . . . is to decide whether or not to release a prisoner on parole in respect of a sexual offence or a serious violent offence.

Your Honours will see in the definition that a serious violent offence is the meaning of 77(9) which includes, your Honours have to trace through it to the Sentencing Act, but it includes murder of which the plaintiff was charged and convicted:

(3) An order under section 74 . . . be released –

and we would say this would apply to the plaintiff:

may only be made by the SVOSO division.

That is subsection (3), and in subsection (5) provides there has to be a recommendation, although not a decision, by another division and again the composition of that division would be determined by the chairperson.

In our submission, that feeds into as one of the processes for parole under section 74 in relation to the persons to whom it is applied, and so much is made clear by the introductory words of 74(1) which says that it is subject to 74AAB. There can be no doubt, in our respectful submission, that the plaintiff to the extent there is a parole order in his favour could only be made under section 74, so much appears from 74AA, the particular provision which says the Board must not make a parole order under section 74 in respect of the prisoner.

So, in our submission, the work that 74AA does is to change the criteria in respect of which the Board when it comes to determine it under section 74, the parole application made by the plaintiff, and that the processes are otherwise provided for in the Act. That being so, there is no requirement – and, indeed, it cannot be the case that the Parole Board proceeds en banc for the plaintiff, it can only proceed by way of division in the manner that I have submitted, in our respectful submission.

That provides the context for the specific attack on 74AA, and can I take your Honours to it now and make some short submissions about its construction.  If your Honours turn to subsection (3) of 74AA, in my submission, the Board – and in this case it will be by division – must obtain a report and that section (3)(a) should be read as requiring the Board to have regard to as a fundamental element of its decision‑making process the Board.

But importantly, point one, the Board is not bound to accept any opinions or recommendations.  Indeed, the report does not – the section does not call for any opinions or recommendations from the secretary, it is a report about the subject matter and the satisfaction does not belong to the secretary, it belongs to the Board on consideration of the application, or after considering the application.  So, it does not require – and certainly the Board is not to be directed or controlled by any opinion of the secretary.

The other point we make about (3)(a) and (b) is that the criterion are, in our respectful submission, rationally connected to the subject matter of parole.  They are specifically targeted to an ability to harm or risk and justification.  So, they are not introducing any extraneous criteria to the grant or withholding of the grant of parole.

Seen in that way, in our respectful submission, firstly, a sitting judge is not required to participate.  Secondly, if there is a problem of sitting, then the power to appoint would be circumscribed.  Thirdly, and in any event, there is no problem of a Kable‑type where having a sitting judge participate in 74AA – and I listed some matters immediately before lunch and I will not repeat them – but we emphasise, as highly important, the fact that the court is not engaged in a function in contrast to Kable and many of the other cases.  Secondly, even though in Wainohu, the Chief Justice Kiefel, observed that there may not be a significant distinction between persona designata and a power conferred on the Court, it is material that the matter will never return to the Court.

In Wainohu, it was of significance, in our submission, and that is reported 243 CLR 181 and, in particular, at paragraph 69 – 66, I beg your Honours’ pardon – where the Chief Justice, your Honour Chief Justice Kiefel, observed in the middle of paragraph 66 that:

the non‑judicial function conferred by the Act on the eligible judge is closely connected to the exercise of the jurisdiction conferred by the Act on the Supreme Court . . . is a condition precedent to the exercise of the Court’s jurisdiction –

That is, again, noted in paragraph 69 that:

The declaration which may result from an application is a necessary foundation for an application in the Supreme Court for a control order –

So, in that context, the absence of reasons was a critical matter in conjunction with the future exercise of jurisdiction by the Court.  We do not have anything like that in this case.  In fact, authority is clearly established that the judicial power in respect of the offender is spent – I have taken your Honours to Elliott at paragraph 5.

The involvement of judges of the Court historically is a matter of some significance – more than 50 years in Victoria – judges of the Supreme Court have been participating in parole boards.  Justice Gaudron in Wilson, identified historical practice as relevant in the passage to which my friend took your Honours.  That historical involvement is relevant in circumstances where there is no attack on the participation of judges in parole, generally.

GAGELER J:   Is section 69(2) a provision that has historically been in parole legislation?

MR NIALL:   No, your Honour.  Its timing or its introduction is likely to or does coincide with a decision of this Court in O’Shea, which dealt with an obligation to give procedural fairness in a parole setting.  The reference to O’Shea is 163 CLR, a decision out of South Australia where there was a holding that the Parole Board was bound to accord procedural fairness.  My understanding is that is the genesis of it, so it does not go back.

But, of course, on the procedural aspect, it is not an aspect which is attacked by the plaintiff at all. It is not an aspect which attaches to section 74AA either specifically or any differently to any other provision of the parole Act. If it were a problem, it would be a problem for all of the parole, and understandably the plaintiff does not seek to impugn the parole regime generally. For those reasons ‑ and, in our submission ‑ ‑ ‑

BELL J:   I think it is fair to say that the plaintiff does call in aid 69(2) in the fourth dot point in paragraph 2(d) of the outline.  So while the plaintiff does not embark on an attempt to bring down the whole scheme, the plaintiff does rely on 69(2) in that respect.

MR NIALL:   That is true, your Honour, but in our submission, our answer to that would be that it does not operate any differently in respect ‑ or is not more onerous or any more burdensome in respect of 74AA than it is in respect to any other provision.

KIEFEL CJ:   I think the plaintiff’s concession that the written submission to paragraph 63 was that the fact that the Board is not bound by the rules of natural justice is not fatal to the involvement of judges – of itself is not fatal to judicial involvement.

MR NIALL:   Yes.  And the principle that would have to be engaged is that, by reason of the participation of a judge in a process where he or she is not bound by the rules of procedural fairness in that particular context, the institutional integrity of the court of which they are a member would be impugned or infected.

Now, given the separation between court and parole that is fundamental to this area of law, that cross‑contamination is really not, in our respectful submission, tenable.  That is, the fact that this particular process in this particular regime is adopted does not in any way undermine the integrity of the court of which that judge was a member.  Unlike, perhaps, the situation like in Wainohu, where the failure to give reasons in circumstances where the decision forms part of the ultimate or a return to the court, infected the decision and related, in our respectful submission, is that there is no attempt to cloak the independence of the judiciary – cloak this decision somehow with the independence of the judiciary.  On that point, I direct your Honours’ attention to Kuczborski 254 CLR 51, at paragraphs 228 and 229.

In our submission, this principle bites in relation to the impact that the process might have on the impartiality or appearance of impartiality of the court, and it is particularly a problem where the legislation seeks to cloak what is a decision of the Executive with the neutral colours of judicial

action, and your Honours will see that in that particular context at 229 in the joint judgment it said:

These laws do not purport to “cloak the work of the legislature . . . To the contrary, it is abundantly clear that the responsibility for any perceived harshness or undue encroachment on the liberty of the subject by these laws lies entirely with the political branches of government.

The public acceptability of these laws is in no way shored up by camouflaging legislative responsibility “in the neutral colours of judicial action”.

There is no potential, in our respectful submission, for there to be any appearance or actuality of the decision to be cloaked in the sense of it being attributed to or undermining the judicial branch merely because a judicial officer participates in the process which the Act provides for, for the benefit of the rehabilitation of the affected prisoner.  In assessing it, we would rely on the observation of the Full Court of the Federal Court in Hussain ‑ I do not need to take your Honours to it – 169 FCR 241 at 279. At paragraph 63 the Full Court said:

A procedure that may be repugnant if required of a court will not necessarily be unacceptable if required of an administrative body or tribunal.

We would adopt that, given the very discrete separation between parole and sentence in this context.  So, in our submission, if there is a problem, it would bite at the time at which the judge participates in the process in circumstances where the Act does not mandate a sitting judge to sit and, in circumstances where there is no attack on the general scheme or the general function, the Act operates perfectly harmoniously by simply limiting the power of appointment of a sitting judge to a particular task.  But we do not get to that of course if we persuade your Honours that there is no impediment of a Kable type.  Unless I can be of any further assistance, they are the submissions for the State.

KIEFEL CJ:   Thank you.  Solicitor‑General for the Commonwealth.

MR DONAGHUE:   Your Honours, can I commence by adopting our written outline of submissions?  Our oral submissions will be confined to just one issue, as the outline that has been handed up should make clear, being the issue that was addressed by the plaintiff corresponding to paragraphs 2(f) through (i) of the outline.  In summary, the proposition that we advance is that the Court need not and therefore should not decide the second argument that has been raised by the plaintiff in relation to the role of State judges as members of the Parole Board.

The starting point but not the ending point in advancing that submission is that, as your Honours have seen from paragraph 17 of the amended special case, to date, no State judge has been appointed to discharge the function of the Board, conferred on the Board by section 74 of the Corrections Act as limited by the impugned provision 74AA.

That fact by itself would not be enough to mean that the issue did not arise for determination because if it were to be the case that the role of serving judges as Board members was inseverable then it might be possible to bring down the whole regime, including the regime in its operation with respect to the plaintiff, and so the plaintiff would have an interest in advancing that argument and in having your Honours determine it.

But, in our submission, the fact that no serving judge has as yet been appointed to perform the function of the Board with respect to the plaintiff is enough to make it appropriate for your Honours to embark at the outset in consideration of whether or not the Act could be read down or severed in such a way that the point that is sought to be agitated does not arise.  And we submit that, as a general proposition, where a constitutional complaint depends on the impugned provision having an operation on facts that have not occurred yet or having an effect on people other than the plaintiff, those are the kinds of cases where it is appropriate for the Court, as a threshold issue, to ask is a reading down or severance possible because if it is, then the “whether or not the plaintiff’s argument is good” will not help the plaintiff in the particular circumstances in which they find themselves?

So for reasons that I will develop and I will do so fairly briefly, in our submission, what that involves in this case is your Honours asking yourselves: if it were necessary to do so in order to preserve the validity of section 74AA, could section 64(3) of the Corrections Act be read down in such a way that the chair of the Board could not validly appoint a person who was a serving judge to a division of the Board to decide the plaintiff’s application?

And your Honours will have noted my emphasis there on the word “person” which appears near the end of section 64(3), as the learned Solicitor‑General for Victoria submitted a few moments ago. In our submission, that is the point where the reading down bites because, in any case where the Board is to be constituted through a division, then the persons who constitute that provision must be appointed by the chair. And, in our submission, if your Honours were to accept that, if necessary, those words could be read so as not to appoint the chair, to appoint a serving judge, then any possible foundation for the persona designata challenge all the way.

I will not repeat the submissions the learned Solicitor for Victoria made about 74AAB of the Act, which is the particular division in relation to serious violent offenders.  If your Honours accept that that division applies to the plaintiff, then it necessarily follows that the Board must be constituted by divisions, both by the division dealt with in subsection (1) when making an ultimate decision but also by another division of the Board making the recommendation under subsection (5).

So if the Board has to be constituted in divisions, it necessarily follows that people have to be appointed to those divisions and, if 64(3) is read down in the manner that I have just indicated, it would follow that if necessary there could be no serving judge appointed to discharge the particular function of the Board under 74 and 74AA, of course leaving serving judges free to discharge any of the other functions of the Board not impugned by the plaintiff in this case.

In our submission, the proposition that this issue, the reading down severance issue should be addressed at the threshold is really a particular application of the more generally accepted proposition that the Court does not decide constitutional issues unless it needs to and at least in circumstances where a reading down or severance is readily available that is one reason it may not be necessary to reach a constitutional issue.

To make that good, can I take your Honours briefly to two cases and then I will give your Honours two other references.  The first case is BMA v the Commonwealth 79 CLR 201. If your Honours could start by going to the judgment of Chief Justice Latham at page 235, really for the purpose of identifying the relevant provisions and the argument that were in issue for present purposes, you will see in the middle of page 235 the Chief Justice sets out the operation of section 13 and following. So there was a power conferred on the Director‑General:

for good cause shown . . . suspend or revoke his approval of a pharmaceutical chemist, medical practitioner –

Then there was in section 13(2) a right of appeal conferred to the Supreme Court in circumstances where that power of suspension or revocation had been exercised and various subsections then regulated the way that that appeal was to be conducted.  Then you will see in the last full paragraph on that page at about point 8:

It is contended that these provisions purport to confer upon a State Supreme Court power which is not judicial in character because the provision that the Director‑General may “for good cause shown” suspend or revoke . . . is so vague that there can be no criterion which a Supreme Court could apply –

and therefore it was said to involve a conferral of non‑judicial power.  So it was a constitutional Chapter III based argument said to arise for determination in the case.

Justice Dixon, at the start of his judgment at the bottom of page 256 and on to 257 started his judgment by addressing questions of standing down to the standing of the British Medical Association itself but then said there are various individuals who do have an interest so as to give them standing.  So his Honour was satisfied that there was no standing problem.  But he then went on to consider whether that entitled the plaintiffs to run the attack on those provisions, section 13 and following, that I have just identified.  If your Honours look at about point 4 down page 257, his Honour said:

It is hardly necessary to add that if provisions of the Act or Regulations which would not in themselves affect the plaintiffs and do not touch the practice of their profession are found to be severable so that the operation of other parts of the Act or Regulations is not dependent upon them, the interest of the plaintiffs will not enable them to obtain a declaration concerning the validity of such provisions.

His Honour them summarises the provisions and then over the page, on 258, comes to the conclusion at about five lines down that:

the invalidity would not involve more of the Act than sub-s. (1) and so much of the operation of sub-s. (4) as relates to sub-s. (1) . . . It is not alleged that any of the plaintiffs practises in a particular area in which there is no approved pharmaceutical chemist and, even if he did, it would not give him a sufficient present interest to raise, as an independent question, the validity of the attempt to give a right of appeal if the double contingency should occur in the future of his being approved –

basically being approved and then the approval revoked:

It follows that, since section 13 –

and the various subsections:

are, as I think, severable from the rest of the Act so that their invalidity would not bring the rest of the Act down, the question whether they are invalid does not arise in this suit for determination.

The validity of those provisions was thought not to arise likewise by Justices McTiernan, Williams and Webb.  Now, the point about the resolution of matters of this kind as a threshold issue was more squarely addressed by your Honour Justice Gageler in Tajjour v New South Wales 256 CLR 508 which is the second case I will take your Honours to.

If your Honours could turn to page 585, you see – this is from the second paragraph under a heading “Severance” in the middle of the page – a discussion of severance clauses. The relevant severance clause, I should say, your Honours, here is section 6 of the Interpretation of Legislation Act (Vic) which is in a familiar form and which we have given to your Honours. In paragraph 169, about five lines down, your Honour Justice Gageler quotes from the Bank of New South Wales Case, saying that the effect of a provision of that kind is that:

“the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail”.  A “contrary intention” for the purpose of s 31 is not a legislative aspiration that the enactment is to operate fully –

in accordance with its terms because, of course, that is a legislative aspiration that is always present.  The contrary intention that is required is:

“a positive indication [which] appears in the enactment that the legislature intended it to have either a full and complete operation or none at all”.

Those are familiar words the Court spoke in those terms in Victoria under Commonwealth in Pape.  So, one needs to seek an intention that the provision operates – it is full and complete operation or none at all.  Absent an intention of that kind, the effect of the provision is that it must be given a distributive operation such that those valid operations that it is capable of having, it has.  One way in which those provisions can work is explained, again by reference to authority in paragraph 171 of the judgment, where it is noted that the fact:

That a severance clause operates only as a rule of construction, however, is no impediment to its application to read down a provision expressed in general words so as to have no application within an area in which legislative power is subject to a clear constitutional limitation.  Such reading down can occur even if the constitutional limitation is incapable of precise definition.

In this case, that was a reference to the implied freedom of political communication. In the paragraphs that follow, your Honour Justice Gageler cites a variety of section 92 cases applying that approach. But, we submit, equally, that Chapter III of the Constitution is a clear constitutional limitation for those purposes under persona designata doctrine, in particular.

So even if it be assumed in our friends’ favour that there would be some problem with serving judges performing the function under 74 and 74AA, that problem is a problem that arises from a constitutional limitation operating upon the general power to appoint persons to constitute divisions of the Board and that problem is resolved by reading down those general words by reference to the constitutional limitations so that they do not authorise an appointment which would transgress the constitutional limitation, which is exactly what this Court did in Wilson. 

In relation to a power to appoint person to be a reporter, the word “person” was read not to include a judge of the Federal Court by reference to not the incompatibility test applied via Kable to a State judge but directly to a federal judge.  But, relevantly, in the same way, Chapter III was held to operate the general words.

So, in our submission, there is no difficulty at all as an application of conventional principle with the reading down that we urge and as your Honour Justice Gageler pointed out in paragraph 176 of Tajjour, dealing expressly with the point that we are now developing:

It may be appropriate in a future case to consider severance as a threshold question.  Where it is apparent that an impugned provision would be severable if and to be extent the provision might burden communication on political or governmental matter . . . there is a real question as to whether arguments about whether or not such a burden is justified are appropriate to be entertained absent the demonstration that some right, duty or liability in issue –

turning on the matter.  So we submit that this is a very good illustration of the wisdom of that approach.  We submit that it is reflected in a long history of decisions in this Court.  I promised your Honours two references.  One is the familiar reference from Real Estate Institute of New South Wales v Blair 73 CLR 213 and your Honours will remember the reference to a plaintiff not being entitled to roam at large over the legislation. What Justice Starke said in the next sentence after “roaming at large” was:

He must be confined to those which affect his rights to the possession of his dwelling house and are unseverably tied up with them.

So, his Honour had linked the concept of severability to the extent to which a plaintiff was entitled to roam over the legislation and your Honours in Pape approved or cited with approval that reference and likewise referred to the fact that the Act in that case presented an unseverable or inseparable whole which was the reason that the plaintiff’s argument in that case could go further.

KIEFEL CJ:   What are the references to Pape?

MR DONAGHUE: Sorry, your Honour, (2009) 238 CLR 1 at 69, paragraph 157. So, your Honours, in our submission, having regard to the terms of section 6 of the Interpretation of Legislation Act, it is necessary - and I will just briefly refer your Honours to those terms because the provision is of some width. Section 6 provides that:

Every Act shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of the State of Victoria, to the intent that where a provision of an Act, or the application of any such provision to any person, subject‑matter or circumstance –

So the provision refers not just to the provision but its application:

would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power –

That provision, in our submission, requires an interpretation of the Corrections Act that allows it to have each of its possible valid operations and one of those possible valid operations is to constitute the Board as a division, not including a judge, to do exactly the thing that section 74 and section 74AA require.

That reading being available it must be adopted and as a consequence of that the plaintiff’s second argument cannot assist him, it cannot have the consequence that section 74AA is invalid. If your Honours are persuaded to that effect there is no reason for your Honours to decide the persona designata challenge because deciding it will not assist the plaintiff in circumstances where there has been no judge appointed.

The position would be different, of course, if the Board tried to constitute itself as a division including a judge then he would plainly have standing to run the argument and your Honours would need to decide it,

but, that not having occurred, unless it occurs the issue does not fall for decision.  Your Honours, unless I can be of any assistance, those are our submissions.

KIEFEL CJ:   Solicitor‑General for New South Wales.

MR SEXTON:   If the Court pleases.  In light of the Victorian submissions, we will be brief.  As to the plaintiff’s first argument, your Honours, it seems to us that this is not really a Kable challenge because there has been no conferral of any function on a court by the relevant legislative provision, although at times the plaintiff has seemed to suggest that the legislation affects the institutional integrity of the Supreme Court.  But it seems to us to be rather an allegation of interference with the judicial process, an argument that has been seldom accepted.  One case was Liyanage, a very unusual case, of course, where the argument was successful.

In this case the interference with the judicial process would have to be, if there was one, the impact on the sentence imposed on the plaintiff by Justice Hampel, but section 74AA has no effect on the sentence which continues to operate as it always has. As Chief Justice French noted in Crump (2012) 247 CLR 1, at pages 16 to 17, paragraph 28, once a sentence has been imposed, the question of release becomes one for the Executive Government and the circumstances in which parole may be granted can change over a period of time.

Prior to the introduction of so‑called real life sentences in New South Wales in 1989, of course, most persons sentenced to life imprisonment were released on licence at some stage, and there is a discussion of that system in Crump in the judgment of Justices Gummow, Hayne, Crennan, Kiefel and Bell, at pages 20 to 21, paragraph 41.

Perhaps I should note that in answer to Justice Bell’s question that the class of persons – the relevant class in terms of the legislation in Crump and in Baker is 10 persons.  That is recorded in Baker 223 CLR 513 in the judgment of Justice Kirby at 547, paragraph 94.

So in these circumstances, whether or not the legislation can be described as ad hominem we would say simply does not matter.  There is no reason why legislation cannot refer to a particular individual in the same way that it can be premised on, for example, a particular contract or, as in the case of Duncan, a particular mining lease. 

It is true that some members of the court referred in Kable to the ad hominem nature of the legislation, but this was in the context of legislation that imposed the function on the New South Wales Supreme Court – not the case here – and required it to preside over proceedings which, as Justice Gaudron pointed out in Kable at 106, were not proceedings otherwise known to the law. 

The proceedings did not, as Justice Gaudron noted, involve putting Mr Kable on trial for any offence against the criminal law, but required the making of a guess as to whether he might commit an offence of a particular kind at some time in the future.  As Justice McHugh noted in Kable at 121, the State Parliament:

has the constitutional power to pass legislation providing for the imprisonment of a particular individual –

but it could not in the Kable instance:

consistently with Ch III of the Constitution, invoke the authority of the Supreme Court to make the orders –

authorised by the legislation because that would have compromised the institutional integrity of the court.  Your Honours, as to the plaintiff’s second argument, it is based on the Kable principle in the sense that it refers to a function that may be conferred on a judge of a Chapter III court by the Victorian legislation. 

The proposition seems to us to be very hypothetical at this stage because it has already been noted that the Board considering the plaintiff’s application does not contain a judicial officer and is not required to contain a judicial officer - paragraph 17 of the special case.  So that, even without the Commonwealth’s argument concerning reading down, which we are happy to adopt, it does seem even without that to be very much a hypothetical question before this Court.

But, in any event, even if the Board considering the plaintiff’s application were to contain a judicial officer there would be, we would say, no question of invalidity of the legislation, given the absence of any doctrine of separation of powers at the State level, although it might be noted, if we understood the plaintiff’s argument correctly, that it seemed to say that this would only be a problem in any event if the legislation interfered with the judicial process.  So, as we understood it, one would not get to this question in a sense in an absence of the success of the plaintiff’s first argument.

There has been, of course, a long history at the State level of the appointment of judicial officers to extrajudicial roles noted by Chief Justice French and Justice Kiefel in Wainohu 243 CLR 181 at 212 to 213, paragraph 52, and by Justice McHugh in Kable at 117 to 118. 

Justice McHugh gave the example of the Chief Justice of the State being appointed as Lieutenant‑Governor, which is still the case in New South Wales and in some other jurisdictions. But, for the reasons set out in our written submissions at paragraphs 20 to 23, the function required by section 74AA would not lead to a perception of government influence and the enlistment of State judicial officers so as to contravene the Kable principle.

GAGELER J:   Does the New South Wales legislation have an equivalent of section 69(2)?

MR SEXTON:   The New South Wales legislation provides for judicial officers to possibly be members of the Parole Board.  It talks about “judicially qualify”, which can include a serving judge.  I think that at the moment there might be one or two District Court judges who are members of the Parole Board.  But, as Ms Davidson reminds me, there is no exclusion of the procedural fairness.  In fact, I have not got them here, your Honour, but there are I think some decisions of the New South Wales Supreme Court which say that - require procedural fairness on the part of the Parole Board in New South Wales.  Unless there are any other matters, those are our submissions, your Honours.

KIEFEL CJ:   Yes, thank you.  Solicitor‑General for Queensland.

MR DUNNING:   Your Honours, we wish to amplify our written submissions in only one respect, as your Honours will see from our outline of oral submissions, and that is in relation to the submissions made by the plaintiff.

KIEFEL CJ:   I do not think we have received outlines.

MR DUNNING:   My apologies, your Honour.  The only point we wish to deal with is the submission made by our friends that, central to the holding in Fardon, was the ad hominem character of the legislation there.  In our respectful submission, that is not what one finds in Fardon (2004) 223 CLR 575. May we quickly take your Honours, please, to that? As your Honours…..Justice Kirby was in dissent. Can I start, first of all, with Chief Justice Gleeson’s reasons, paragraph 16, page 591, your Honours, about halfway through paragraph 16, with a sentence that starts:

Toohey J said that the extraordinary character of the legislation and of the functions it required the Supreme Court to perform was highlighted by the operation of the statute –

which named one person.  There is then a reference to submissions that had been accepted in Kable, then at about four or five lines from the bottom, the Chief Justice said:

it was legislation ad hominem.  That argument was accepted.

But then his Honour goes on to say:

The members of the Court in the majority considered that the appearance of institutional impartiality of the Supreme Court was seriously damaged by a statue –

Can we take your Honours, please, to Justice McHugh’s reasoning.  First of all, to paragraph 32 on page 595..  His Honour starts the discussion of Kable there, and about halfway down that paragraph your Honours will see a sentence that starts “The majority Justices in that case held”.  Then your Honours, to paragraph 33 at the top of page 596, again Justice McHugh refers to its ad hominem nature but says it in these terms:

thus ad hominem legislation that, although dressed up as a Supreme Court legal proceeding, had been enacted for the purpose of ensuring that Kable remained in prison when his sentence expired.  Indeed, I thought that it made the Supreme Court ‑

Then his Honour goes on to quote his own earlier judgment, talking of an instrument of a legislative plan.  Likewise, Justice Gaudron’s reasoning to a like effect.  That caused Justice McHugh to conclude, your Honours, on page 601 at paragraph 43, pithily in the first line:

In my opinion, Kable does not govern this case.

And then, your Honours, at about eight lines from the bottom, a sentence that starts:

The terms, background and parliamentary history of the legislation ‑

If I could ask your Honours to read that sentence.  Might we then take your Honours, please, to the reasons of Justice Gummow.  His Honour’s analysis of Kable commences at page 617, and in paragraphs 100 and 101 for our purposes.  Can I direct your Honours, please, to what his Honour says in paragraph 100, the third line that starts “First, it was a particular combination” through to the end of that and the next sentence, and then the first sentence of paragraph 101 that starts “Secondly”.

Finally, your Honours, may we take you, please, to the joint reasons of Justices Callinan and Heydon, at page 658, in paragraphs 233 and 234. 

In the last sentence of 233 their Honours record that what was considered in Kable was ad hominem but spoke of this legislation as having general application, but then in their analysis that follows in 234 their Honours explaining why it did “not offend against the principle for which Kable stands”, say in the third and fourth line:

and to achieve it with due regard to a full and conventional judicial process, including unfettered appellate review.

In our respectful submission, on a proper and, indeed, only reading of the Court’s record of the majority, six members of the Court in Fardon, it is not right to say that central to the invalidity in Kable was its ad hominem character but, rather, what was central to it was the requirement of the court’s participation in an activity which was repugnant to its institutional integrity. 

Unless we are able to assist your Honours any further, they are our submissions.

KIEFEL CJ:   Thank you.  Solicitor‑General for Western Australia.

MR QUINLAN:   May it please the Court.  If the Court has our outline of oral argument, members of the Court will see that in addition to adopting our written outline of submissions, we propose to make two short points in relation to our oral submissions concerning the decision in Crump v New South Wales 247 CLR 1, firstly in relation to whether it is distinguishable in the way that our learned friends for the plaintiff put it and, secondly, a point in relation to whether it ought be reopened.

The first point relates to a matter that has been raised in the course of argument already, which is whether or not it can properly be said that the legislation upheld in Crump ‑ section 154A of the Crimes (Administration of Sentences) Act (NSW) – could properly be said to be ad hominem. As has been submitted by my learned friends, the solicitors for Victoria and New South Wales, we submit that it was because it applied to and could only ever apply to a closed finite group of persons that makes it, in our respectful submission, ad hominem or, to be completely accurate, ad homines, the plural, but it is confined persons.

In terms of making good why that is the case, just to close the circle of that aspect of the argument, we have provided to the Court relevant extracts from the New South Wales legislation in Crump and for completeness we have provided it both as it all was at the time that section 154A was inserted, and then secondly the way the provisions appear now.

But the short point to make about that is that in order to understand the substantive operation of section 154A, as is reflected in the section which is at the front of the – and I am working off the legislation as it existed at 20 July 2001 – the operative provision operated upon serious offenders who were defined by reference to in subsection (4) those persons in clause 4 of Schedule 1 of the Crimes (Sentencing Procedure) Act 1999.

If one goes to that schedule, one finds in section 4 that that clause of Schedule 1 which is over the page applied only to persons serving “an existing life sentence”, and then if your Honours go to the definition of “existing life sentence” which appears in clause 1, “existing life sentence” is defined to mean sentences “of imprisonment for life imposed before” or after a particular date in 1990, which was obviously prior to the insertion of section 154A, but excludes – “does not include a sentence for the term of a person’s natural life under”, at that time, section 19A and section 33A of the Misuse of Drugs Act.

The significance of that is that the exclusions in the definition of “existing life sentences” covered the entirety of the circumstances in which a sentence for life might in future be imposed in New South Wales and that is reflected in the next provision which is section 431A of the Crimes Act 1900 which provides the circumstances in which a life sentence may be imposed.

Then if one goes to those particular provisions it is apparent as a result of what was first called the “Truth in sentencing legislation” that a life sentence only means for the term of the natural life.  Each provision allows a finite sentence to be imposed but the result of those provisions taken as a whole is that henceforth there would be no life sentences in New South Wales that were not sentences for the term of the prisoner’s natural life.

That effect, which has continued to be the case even though there have been other offences inserted which make life an option means that the section applied and would only ever apply to that group of persons who met the description of existing life sentence at the time section 154A was passed, which is why, in our submission, it is properly described as an ad hominem law.

The second point we make which touches upon the application, if it gets to that for reopening Crump, concerns the passage in Baker v The Queen 223 CLR 513, that the plaintiff makes a submission in relation to at paragraphs 32 of their outline and 8 of the reply. That passage is reproduced in full in the decision in Crump in the judgment of the plurality Justices Gummow, Hayne, Crennan, Kiefel and Bell.

Can I take your Honours to that.  It is at page 21 of Crump in paragraph 41.  It is the final sentence of the quote that appears from Baker v The Queen on page 21 which begins five lines from the top:

But in no sense (whether as a matter of substance or as a matter of form) can later legislation, altering the circumstances in which such mercy could or would be extended to a prisoner sentenced to life imprisonment, make that sentence of life imprisonment more punitive or burdensome to liberty.”

The plaintiffs characterised that as expressing a view that Parliament was precluded from legislating in a particular way and we adopt the submission of our learned friend for the first defendant that in fact what the passage meaning is is that legislation which alters the circumstances in which the Executive might extend mercy does not extend or make heavier.

And we go further to make the point that the reason for that is not simply because it is a life sentence but because such legislation does not affect the sentence at all and would apply equally to a finite sentence in relation to which the criteria upon which the Executive might grant parole after a minimum period was altered.

The significance of that, for the purposes of Crump, in our respectful submission, is that that principle is the principle derived from the long‑established understanding as to the judicial function and the legal effect of fixing a minimum period.  It is that principle which, in our respectful submission, underlies the result itself in Crump. 

That line of authority is usefully summarised, in our respectful submission, in the reasons for decision of his Honour the Chief Justice, Chief Justice French, at paragraph 28 where his Honour in that paragraph goes through the history of cases beginning with Power v The Queen, then to Bugmy v The Queen, Deakin v The Queen, Elliott v The Queen. It is that principle upon which the case turned and that is reflected in the judgment of his Honour the Chief Justice at paragraph 34 and in the judgment of the plurality in paragraph 60.

We make that point because, in our respectful submission, the fact that the result in Crump and the reasoning in Crump is built upon that longstanding understanding of the effect of a minimum term militates against any application to reopen Crump given that it relies on that established practice.

One final matter and it is, perhaps, a pre‑emptive answer to what might be an identical question asked of my learned friend, the Solicitor‑General for New South Wales, in relation to our legislation by

your Honour Justice Gageler, is that the Sentence Administration Act 2003 (WA) has a provision akin to section 69(2) of the Victorian Act, that is, the rules of natural justice and are also described as the rules of procedural fairness are excluded by section 115 of that Act. If the Court pleases, those are our submissions.

KIEFEL CJ:   Solicitor‑General for South Australia.

MR BLEBY:   May it please the Court, I propose to address, simply, the third proposition in our oral outline of argument.  It is relevant to the plaintiff’s second contention and it addresses an aspect of the complaint that the Board is required to be satisfied on the basis of the secretary’s report and I would address it insofar as that is invoked really only, as I understand it, a booster to the plaintiff’s second contention.

The plaintiff’s complaint about that phrasing does not, in our respectful submission, sufficiently engage with the necessary exercise of construction of the phrase other than, insofar as my friend has pointed to certain other phrasings within the Act.  Rather, it is said that this function of the Board is consequently not formed independently of any instruction, advice or wish of the legislature or Executive Government.  It is construed, it is said, as a direction, essentially, to follow the secretary’s report. 

The Act would never be construed in that way. First, on its terms, the Act requires the Board itself to reach certain states of satisfaction, that is section 74AA(3). Secondly, as we mentioned in our written submissions at paragraph 41 and as your Honour Justice Gordon has pointed out, section 71A, which, of course, is an incidence of the general power of the Board to inform itself as it sees fit in section 71, would necessarily, if the Board were to come across information that went to that mandatory consideration, it would have to take that into account, notwithstanding that the secretary was not the source of that information.

Thirdly, there is no difficulty with the proposition that an independent decision‑maker can receive a report of factual matters and then not feel the need to go beyond the factual matters set out in the report, subject of course to whatever particular obligations of administrative law that might sit around that, be they natural justice or some other relevant consideration. 

So, as it was in a case which is on our list, Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, when a court held that the Minister was bound to take into account the most up‑to‑date information available, Chief Justice Gibbs said at page 30 at about point 3 on the page:

In many, if not in most, cases the Minister, in considering those matters, will not need to go beyond the report of the Commissioner.  However, if there is in the possession of the Minister, at the time when he considers the matter, material which shows that the position has changed since the Commissioner made his report, or that for any reason the Commissioner’s comments were based on an erroneous view of the facts, the Minister is bound to take that material into account.

The Minister, in the ordinary circumstances was entitled to base a decision – to use that phrasing – on a report subject to the other usual obligations and then Justice Mason at page 45 expressed it in this way:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.

I will not read the rest of the paragraph.  My point about invoking that authority is really to say that what we highlight is that subject to the need to ensure that consideration of factual reports is otherwise done lawfully, there is no mischief arising, certainly in the administrative law context by the use of the phrase “on the basis of” and I am speaking only textually here, that if a statute that employs that basis, that phrasing, why would you construe it to mean a direction.

It is nothing more than rendering the report a relevant consideration.  There is no textual reason to, if you like, amp up or make more mandatory or directory, the phrasing and purposively, this constructive, to think about it in this way, purposively, where the employment of a section has an impact on the plaintiff’s liberty, why would you read it, if you like, narrowly like that as requiring direction.  Why would you not employ ordinary principle where liberty is at stake and construe it in the way that the phrasing is otherwise generally used.

In any event, it is quite unremarkable for a court to be required by statute to have regard to a submission or a report, a report of fact as a precondition to making such an order.  South Australia has, in a different context, similar provisions under sections 23 and 23A of the Criminal Law (Sentencing) Act which is the facility for making an indefinite detention order to continue on post serving of a full period of imprisonment.  I will not take your Honours to that section.

Insofar as the plaintiff’s submission is that the secretary’s report inherently then gives rise to some issue of bias and, as I understand it, that

that bias may then feed the issue of incompatibility, that the secretary is the author of the report is of no moment.  The point is that a fact finding by one member of a board - not an unusual thing - then reports to the Board.  Let us even assume that the secretary sits as part of the Board.  That does not thereby disqualify the member from sitting on the Board in its final deliberations on the grounds of bias, certainly not if that fact‑finding exercise in itself was not itself tainted by bias.  That is where you have to find the necessary mischief of bias before you could then reason through to say that the Board’s conclusion was necessarily tainted by bias.  To your Honour Justice Gageler, the South Australian Parole Board is bound by the rules of natural justice - there is no exclusion – under the Correctional Services Act.  May it please the Court.

KIEFEL CJ:   Do you have any submissions in reply, Ms Walker?

MS WALKER:   Yes, your Honours.  Mr Bongiorno will in fact do the reply submissions but, before I hand over to him, could I clarify one matter from my own submissions this morning in relation to a question from your Honour Justice Edelman concerning the role of public confidence.  I answered your Honour by saying that, while not the touchstone of invalidity, public confidence is an indicator. 

I said to the Court that I unfortunately was unable to recall whether it was the North Australian Aboriginal Land Council or Emmerson.  Could I clarify it was the decision of the Court in North Australian Aboriginal Justice Agency Limited and Another v Northern Territory 256 CLR 569. Can I refer specifically to the judgment of the majority at paragraph 40 – I will not take the Court to it – and to the judgment of your Honour Justice Gageler at paragraph 124. So that point of clarification, and can I then ask Mr Bongiorno to do the reply, your Honours.

MR BONGIORNO:   Thank you, your Honours.  I have one confined point with respect to our first contention and three confined points with respect to our second.  The Court queried what precisely was the form of interference that we allege this legislation occasions and if I may take your Honours to paragraph 36 of our principal written submissions and what is set out there are in fact the matters upon which we rely.

The Solicitor‑General for Victoria asserted that what is required is in fact a legal interference.  We respectfully submit otherwise.  What we assert, what we submit, is that in fact the primary consideration is the institutional integrity of the Supreme Court of Victoria and other Victorian courts vested with Chapter III jurisdiction and between paragraphs 36, which lead into the conclusions in paragraph 39, these are the matters upon which we rely.

KIEFEL CJ:   Well, there might be effects, and in particular effects for the plaintiff, but what is the interference?

MR BONGIORNO:   The interference is to the extent that this legislation refers to a particular and readily identifiable exercise of jurisdiction by the Supreme Court of Victoria and then seeks to amend the effect of that exercise of jurisdiction.

KIEFEL CJ:   You mean that it refers to a sentencing order?

MR BONGIORNO: That is right. It refers to a sentencing order. That sentencing order contained a minimum term, and the remainder of the provisions, so those references are in section 74AA(6). The irresistible conclusion, we say, is that subsection (3) is there to address what has occurred in subsection (6), subsection (3), of course, being the mandatory preconditions to the exercise of parole under section 74. That is a summary of what is set out in sections 36 to 40 of our written submissions, and we answer the Court’s query that way.

If I may, I wish to turn to our second contention, in particular with our written submissions, from paragraph 58 onwards.  What we set out there are the factors that we say render the Supreme Court of Victoria unsuitable to be a repository of Chapter III power.  They are cumulative and they are interconnected. 

Dr Bleby has just made some submissions about the words “on the basis of”.  I wish to clarify precisely what we mean.  We have never asserted that a judge or any other division is bound to be satisfied by the report of the secretary.  However, we respectfully resist the characterisation imposed on this provision by Dr Bleby as well as the Solicitor‑General for Victoria.

The term the Solicitor‑General for Victoria used was “mandatory consideration”.  We submit that this actually goes further.  The term “on the basis of” requires that there be a mandatory intellectual connection between the secretary’s report and whatever way the Board or division decides to go. 

That is a more intrusive concept than a mandatory consideration, which an executive body may be very well required to consider but then treat in a particular way that it sees fit.  In this instance, whether the Board is satisfied or does become satisfied of the matters in subsection (3) or not, it will do so because of the usage of those words “on the basis of”, it will do so on the basis of the secretary’s report.

That is one aspect I wish to emphasise and otherwise to clarify a query of the Court before we do rely on the provision that excludes the rules of natural justice.  We of course do not say that this of itself renders the regime invalid.  However, we do rely on it in a cumulative way.

I now briefly wish to address the reading down argument that was put by the Solicitor‑General for Victoria. It is predicated – my friend’s argument is predicated on a large degree on the idea that the Board, in this instance, is bound to cease in a division. In that connection, he relies on section 74AAB which, it is submitted, also applies to the plaintiff.

You will have noted that in taking you through this provision the Solicitor‑General for Victoria went through section 74AAB, submitted that upon the satisfaction of the provisions there, the Board or whatever entity would move on to section 74AA. However, we say that that gives rise to a number of dissonances between section 74AA and section 74AAB.

Firstly, under section 74AAB, a relevant actor is that particular division of the Parole Board. If my friend’s submission is to be accepted, the legislation moves from having the decision‑maker being that relevant division, back to being the Board again. We say that that is a statutory indication that, in fact, section 74AA is, in fact, the sole provision. Otherwise, as Ms Walker submitted, the specificity of the section 74AA, in fact by implication precludes the more general provision in section 74AAB. If that contention is made good then my friend’s predicate to his argument that the Parole Board has to sit in divisions when acting under section 74AA in fact falls away.

I otherwise wish to point very, very briefly to two other provisions. The first is in fact focusing on, within the context of section 74AAB, that subsection (1) provides for the division to be constituted in a particular way, and your Honours will see that there. Further, if we could turn to section 64A. What your Honours will find there is a similar regime, or at least a regime to a similar effect, under section 64A. In particular, it provides that “The secretary is not eligible to sit as a member” and that the chairperson may determine the number of members who are otherwise eligible to sit; the point being that my friend’s reading down argument is asking this Court to effectuate a similar provision as section 64(1) to (3) and section 74AAB(1), except as applied to section 74AA.

To take up what the Solicitor‑General for the Commonwealth submitted, this legislation is otherwise providing for the purposes of the interpretation of legislation provisions to which Mr Donaghue took your Honours.

A number of the parties have relied on Wilson to support the proposition that, if our constitutional argument is made good, the only thing that should occur is that judges should be excluded from sitting or being

connected with section 74AA. May I make the simple point that in Wilson itself the only thing that the plaintiff sought to impugn was the appointment.

It is therefore entirely unremarkable and there is nothing to be garnered from the fact that this Court only struck down the appointment as opposed to the legislation itself.  I will not take your Honours to the case.  However, the legislation referred to there pursuant to which the appointment was made was an appointment provision that did not name judges and was only provided for the appointment of persons.

We have put in our submissions and today we have developed the idea that judges in this instance are integrated through the entirety of the scheme, and we do so on the basis of the statutory provisions.  We make that submission on the basis of the statutory provisions that Ms Walker took you to earlier today.

Obviously, that distinguishes this matter from Wilson.  In particular, I would ask that the Court examine exactly what the plaintiff sought in Wilson.  If I could finally introduce – pardon me, respond to the Solicitor‑General for the Commonwealth’s reliance on British Medical Association v Commonwealth 79 CLR 201. The Solicitor‑General referred to pages 257 to 258 and we wish to make the following submissions about what is occurring here.

Again, it pays to pay attention to exactly what the plaintiff was doing, and that was seeking to impugn the constitutionality of an entire piece of legislation by random skirmishes on particular provisions within it.  Justice Dixon is making a point here which is more forensic than anything, which is to the extent you seek to attack individual provisions and they are severable, you are not furthering your cause towards your relief; you are not impugning the constitutionality of the legislation.

It also had another effect, of course, because of the manner in which the plaintiff, or rather the prosecutor, I will call them – they were a plaintiff, pardon me – was conducting their case, they were raising points by reference to individual provisions which actually did not affect them. In this instance, there is no doubt – and Victoria and the plaintiff agree – that section 74AA affects the plaintiff, and that is enough to cause this Court to answer the constitutional points raised in this litigation. Thank you, your Honours.

KIEFEL CJ:   Thank you, Mr Bongiorno.  The Court reserves its decision in this matter and adjourns until 10.15 am tomorrow.

AT 3.44 PM THE MATTER WAS ADJOURNED