Minogue v Adult Parole Board

[2024] VSC 247

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 04636

CRAIG MINOGUE	Plaintiff
v
ADULT PAROLE BOARD OF VICTORIA	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	17 May 2024
CASE MAY BE CITED AS:	Minogue v Adult Parole Board
MEDIUM NEUTRAL CITATION:	[2024] VSC 247

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ADMINISTRATIVE LAW — Judicial review — Decision of Adult Parole Board to deny plaintiff’s application for parole — Whether Adult Parole Board had jurisdiction to make decision — Application for extension of time — Plaintiff’s interpretation misconceived — Extension of time refused — Proceeding dismissed — Corrections Act 1986 (Vic), ss 74, 74AB.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr L Brown SC, Crown Counsel for Victoria, with Mr S Rajanayagam	Victorian Government Solicitor

HER HONOUR:

1. In August 1988, Craig Minogue was sentenced by this Court to a term of life imprisonment, with a non-parole period of 28 years.  On 3 October 2016, Dr Minogue applied for parole.  His application was made to the Adult Parole Board pursuant to s 74 of the Corrections Act 1986 (Vic).

1. In August 2018, before Dr Minogue’s application for parole had been determined, the Corrections Act was amended so that Dr Minogue may be granted parole only if he is in imminent danger of dying or is seriously incapacitated.[1] Section 74AB of the Corrections Act now provides:

   [1]Corrections Act 1986 (Vic), s 74AB, inserted by s 5 of the Corrections Amendment (Parole) Act 2018, (2018 amendment). An earlier amendment to the Corrections Act, made in December 2016 by s 3 of the Justice Legislation Amendment (Parole Reform and Other Matters) Act 2016 (Vic), was found by the High Court to be incapable of applying to Dr Minogue: see Minogue v Victoria (2018) 264 CLR 252. The High Court later upheld the constitutional validity of the 2018 amendment: see Minogue v Victoria (2019) 268 CLR 1.

Conditions for making a parole order for Craig Minogue

(1) The Board must not make a parole order under section 74 or 78 in respect of the prisoner Craig Minogue unless an application for the order is made to the Board by or on behalf of the prisoner.

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

(3) After considering the application, the Board may make an order under section 74 or 78 in respect of the prisoner Craig Minogue if, and only if, the Board—

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

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

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

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

(4) The Charter of Human Rights and Responsibilities Act 2006 has no application to this section.

(5) Without limiting subsection (4), section 31(7) of the Charter of Human Rights and Responsibilities Act 2006 does not apply to this section.

(6) In this section, a reference to the prisoner Craig Minogue is a reference to the Craig William Minogue who was sentenced by the Supreme Court on 24 August 1988 to life imprisonment for one count of murder.

1. On 21 October 2021, the Board decided to deny Dr Minogue parole.  In a letter advising Dr Minogue of the decision, the Secretary of the Board explained that the Board was not satisfied that Dr Minogue was in imminent danger of dying or that he was seriously incapacitated, and thus the Board declined his parole application.  The letter noted that it is open to Dr Minogue to submit a further parole application if his circumstances change in future.

1. In this proceeding, Dr Minogue seeks judicial review of the Board’s decision of 21 October 2021.  He seeks declarations to the effect that the decision was beyond the Board’s jurisdiction and therefore unlawful, and an order in the nature of certiorari quashing the decision.  He also seeks an extension of time in which to commence the proceeding.[2]

   [2]The proceeding was commenced on 4 October 2023, a long time after the 60 day time limit prescribed by r 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2015.  Dr Minogue filed an affidavit dated 6 December 2023 in which he provided an explanation for the delay.

1. In written submissions filed 27 October 2023 and 29 February 2024, Dr Minogue argued that the Board did not have power to make any decision on his application unless the conditions of s 74AB(3) of the Corrections Act were met. He did not challenge the Board’s finding that he was not in imminent danger of dying or seriously incapacitated.

1. Dr Minogue urged a purposive approach to the construction of s 74AB of the Corrections Act.[3]  By reference to the extrinsic materials for the Corrections Amendment (Parole) Act 2018 (Vic), Dr Minogue submitted that the Court should find that Parliament intended s 74AB to operate as a threshold to the Board’s jurisdiction to grant parole under s 74 of the Corrections Act.[4]  He said that this threshold must be crossed before any parole decision — either to grant or decline an application — could be made in his case.  Dr Minogue reformulated the declaration he sought in the following terms:

Do the conditions of s 74AB(3)(a)(i)(ii)(b) of the Corrections Act 1986 operate to limit the jurisdiction of the APB of Victoria in the case of Craig Minogue so that the jurisdiction of the Board to consider exercising the s 74 power to make a Parole decision (to grant or decline an application) is only subsequently enlivened after the conditions are in existence?

[3]Referring to the Interpretation of Legislation Act 1984 (Vic), s 35(a).

[4]Referring to the Interpretation of Legislation Act, s 35(b).

1. In written submissions filed 16 February 2024, the Board submitted that the pre‑condition in s 74AB(3) of the Corrections Act applies only to decisions to grant Dr Minogue parole, and did not preclude the decision to deny him parole. The Board referred to s 74(1) of the Corrections Act, noting that it expressly confers a power to grant parole and says nothing about the circumstance where the Board does not exercise the power to grant parole. The Board said that Dr Minogue had wrongly conflated two fundamentally different kinds of decision — namely, decisions to grant parole and decisions not to grant parole. In the Board’s submission, s 74AB(3) only conditions the power to grant parole. It referred to the text, context, and purpose of s 74AB of the Corrections Act in support of that submission, and said that Dr Minogue’s preferred construction would lead to irrational consequences. The Board further submitted that an extension of time should be refused because the proceeding was without merit.

1. The parties agreed that the proceeding should be determined on the basis of their written submissions.

Consideration

1. The construction of ss 74 and 74AB of the Corrections Act contended by Dr Minogue is misconceived. I accept the Board’s submission that Dr Minogue’s construction is not supported by the text, context or purpose of those provisions, and would have irrational consequences.

1. The text of s 74AB is set out at [2] above. Section 74AB prohibits the Board from making a parole order under ss 74 or 78 in respect of Dr Minogue, unless the conditions in s 74AB(3) are met.

1. In this case, only s 74 is relevant.[5] Section 74(1) provides:

Subject to sections 74AAB, 74AAC and 78(3), 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.

[5]Section 78 allows the Board to release a prisoner on parole more than once.

1. As the Board submitted, a decision not to grant parole is not an order under s 74 for the purposes of s 74AB(3). Section 74(1) confers power on the Board to grant parole. It enables the Board, by instrument, to order that a prisoner be released on parole at the time stated in the order. The Board may only exercise that power in Dr Minogue’s case if it is satisfied that the conditions specified in s 74AB(3) exist. If it is not satisfied of those conditions, it cannot grant parole. Whether the Board refuses the application or makes no decision on it, the practical effect is the same — Dr Minogue is not granted parole and remains in prison.

1. Dr Minogue is correct to say that s 35 of the Interpretation of Legislation Act 1984 (Vic) requires me to take a purposive approach to the interpretation of s 74AB of the Corrections Act, and permits reference to the full range of extrinsic materials relevant to the provision. However, I cannot accept his argument that the purpose of s 74AB is to operate as a ‘threshold for jurisdiction’ that must be crossed before the Board can make any decision on an application by Dr Minogue for parole. To the contrary, it is plain from the words of the provision and the extrinsic materials referred to by the parties that Parliament’s purpose was to ensure that Dr Minogue is not granted parole and will not be released from prison unless the stringent conditions in s 74AB(3) are met. That purpose is achieved whether the Board denies an application for parole because the conditions are not met, or makes no decision on the application. In neither case will Dr Minogue be released from prison.

1. The interpretation of ss 74 and 74AB advanced by Dr Minogue would lead to the irrational consequence that the Board may not make any decision on an application for parole unless it is satisfied that the conditions in s 74AB(3) exist. This would require the Board to leave an application for parole that it cannot grant in decisional limbo. Such a strange result has no apparent basis in reason, and cannot have been intended by Parliament.

1. The Board’s refusal of the application made by Dr Minogue in October 2016 does not foreclose future applications for parole.  As the Secretary of the Board noted in the letter of 26 October 2021, Dr Minogue may submit a further application for parole if his circumstances change.

Disposition

1. The proceeding is without merit, and so there would be nothing to be gained by extending the time for its commencement.[6]

   [6]Independent Contractors of Australia Inc v Victorian WorkCover Authority [2022] VSC 743, [84], [135].

1. The application for an extension of time is refused, and the proceeding is dismissed.

1. The Board seeks an order that Dr Minogue pay its costs of the proceeding, which would be consistent with the usual rule that costs follow the event.  If Dr Minogue seeks a different order as to costs, he may file and serve a written submission to that effect within seven days.  If he does so, the Board may file and serve a written submission in response within a further seven days.