Minogue v State of Victoria

[2019] HCATrans 124

[2019] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M162 of 2018

B e t w e e n -

CRAIG WILLIAM JOHN MINOGUE

Plaintiff

and

STATE OF VICTORIA

Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 18 JUNE 2019, AT 10.00 AM

Copyright in the High Court of Australia

MR C.J. HORAN, QC:   May it please the Court, I appear with MR A.F. SOLOMON‑BRIDGE and MR R.A. MINSON for the plaintiff.  (instructed by Darebin Community Legal Centre)

MR P.J. HANKS, QC:   Your Honours, I appear with MR A.D. POUND and MS S. ZELEZNIKOW for the State of Victoria.  (instructed by Victorian 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’s Office (NSW))

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 E.M.G. CROMPTON, for the Attorney‑General for South Australia, who intervenes.  (instructed by Crown Solicitor’s Office (SA))

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with MS F.B. SEAWARD on behalf of the Attorney‑General for Western Australia intervening.  (instructed by State Solicitor’s Office (WA))

KIEFEL CJ:   Yes, Mr Horan. 

MR HORAN:   May it please the Court.  When a sentencing court fixes a minimum term or non‑parole period, as it is now called, it does so as an integral part of the determination of the punishment for the offence.  In our submission, this determination and imposition of that punishment is an essential and exclusive judicial function.

We say that a legislative extension of the period of ineligibility for parole is in substance the imposition of additional punishment in respect of the same criminal conduct, and this includes a withdrawal or removal of the power to consider whether or not to grant parole for a further period, whether fixed or indefinite, after the expiration of the minimum term fixed by the sentencing court.

The plaintiff’s challenge to section 74AB and, if it applies to the plaintiff, section 74AAA, relies on a series of propositions, which are set out in our written outline of oral argument.  Our first proposition is that the proper construction and characterisation of the provisions is that they deny parole eligibility for a further period of time.  In substance and effect, they extend the non‑parole period or, perhaps more accurately, they impose an additional non‑parole period, a period of ineligibility for parole.

Next, we submit that the imposition of a minimum term of imprisonment before a prisoner becomes eligible to be considered for parole is a discrete component of a punishment for an offence, so that an extension or lengthening of that period therefore amounts to an increase in the punishment under the sentence.

A third proposition is that the power to impose punishment as a consequence of criminal guilt is essentially and exclusively judicial in nature.  I will not need to say much about that proposition because I think it is largely common ground between the parties.

The fourth proposition is that the State Parliament cannot pass a law that amounts to an exercise of such an exclusively judicial power, which is of course an issue joined between the plaintiff and the defendant and then, to the extent necessary, so as to further alternatively our next submission is based upon the cruel, inhuman and degrading treatment aspect and we say that the imposition of an irreducible life sentence on the plaintiff amounts to cruel and inhuman treatment or punishment.

For that reason we say it would be beyond, firstly, the power of the Supreme Court of Victoria to impose or to have imposed such a sentence on the plaintiff, but more relevantly for the present case, the impugned provisions seek to bring about that result by what we say are indirect or circuitous means and are therefore offensive to Chapter III insofar as the Parliament has sought to convert the sentence into one that is irreducible and therefore a cruel and unusual punishment.

Our final proposition is that the provisions are contrary to the implied constitutional assumption of the rule of law, including as given expression in the separation of judicial power from legislative and executive powers. 

If I could start with the first proposition, which is a necessary one to most of the following propositions, and that is that the provisions impose a further non‑parole period.  We say it is necessary to look at the substance and practical operation of the provisions and not just their terms.  Looking first at section 74AB, your Honours will see, firstly, that it applies specifically to the plaintiff, who is named as the prisoner Craig Minogue, and applies by reference to his conviction and sentence for murder in 1988.

We do not say that has any distinct consequences in terms of its ad hominem effect, but this particular section relevantly in the same terms as the preceding provision which applies in relation to Julian Knight, if one then applies it to a specific prisoner in respect of a specific conviction and sentence, the operation of the section is largely or predominantly in subsection (3), which imposes preconditions for the making of a parole order by the Board in terms that are relevantly identical to those in the preceding subsection which was considered by this Court in Knight v State of Victoria. 

That subsection provides that the Court may make an order for release on parole if and only if certain matters are satisfied.  The relevant requirement that we focus on for the purposes of our case is that in subparagraph (3)(a)(i), which relevantly requires that the prisoner be “in imminent danger of dying or is seriously incapacitated”.

We note and accept that the subsection also requires other matters, namely, that the Board be satisfied that the prisoner “no longer has the physical ability to do harm to any person” and that he “does not pose a risk to the community” and, further, that because of those circumstances, the making of a parole order “is justified”, but none of those other requirements will arise unless the Board is first satisfied of the first part of paragraph (a)(i), namely that the prisoner “is in imminent danger of dying or is seriously incapacitated”.

In other words, that is a necessary but not sufficient condition to enliven the Board’s power to make a parole order and unless and until the prisoner is in imminent danger of dying or is seriously incapacitated, the Board will have no power to make a parole order.

Looking at section 74AAA, which is also the subject of challenge in these proceedings and is the subject of the questions in the special case, that section applies similar requirements in subsection (5) but in relation to a defined class of prisoners, which is defined by reference to a range of matters which I do not need to go through in detail this morning.

Subsection (5), although it is essentially to the same effect as subsection 74AB(3), for reasons that are not fully apparent, is expressed slightly differently and more directly insofar as it provides that “the Board must not make a parole order” unless the relevant conditions are satisfied, in contrast to section 74AB, which provides that “the Board may make an order . . . if, and only, if”.

We say nothing turns on that distinction and that in either case the operation of those conditions is a precondition to the existence of the power to make the order.  Similarly, with subsection (5) of section 74AAA the power will not arise unless the relevant requirements are met.

The defendant has raised a threshold issue as to whether the validity of section 74AAA arises in these proceedings in circumstances in which, on the facts agreed in the special case, the Board has not yet satisfied itself of the matters set out in subsection (1).  It has not yet been determined whether or not section 74AAA applies to the plaintiff.  Nevertheless, the plaintiff submits that the same constitutional issues arise in relation to the validity of section 74AAA, so that if the challenge to section 74AB is upheld it is difficult to see how section 74AAA would not be similarly invalid.  We say the Court could make a determination accordingly.

On the other hand, at the risk of having our cake and eating it too, we say that if the plaintiff’s challenge to section 74AB were not accepted there might be further arguments about the construction and even the validity of section 74AAA in its potential application to the plaintiff. 

GAGELER J:   Are they arguments you are putting?

MR HORAN:   No.

GAGELER J:  Well, you do not want us to rule on 74AAA.  

MR HORAN:   We say, ultimately the Court may not need to.  Even if it determines that 74AB is invalid, it may be that the reasons will stand and will be capable of being applied by a future plaintiff in relation to the other section.  But if the vice in 74AB(3) is equally applicable to section 74AAA(5), we say that we have standing to challenge that, notwithstanding the absence of any determination that the section applies to the plaintiff and that the Court could reach the same conclusion in relation to the invalidity of this section, which is why I said, your Honour, quite frankly, that in some ways this is having our cake and eating it too because we say that ‑ ‑ ‑

KIEFEL CJ:   Yes, I mean the question is really whether you can approach the matter in that way.

MR HORAN:   Yes.

KIEFEL CJ:   We have to have full argument on both sides of the equation if you want us to – I mean, we are either addressing 74AAA or we are not.

MR HORAN:   Yes.  Some of the arguments that would arise in relation to 74AAA are that we would not concede that, especially in the light of this Court’s finding in the previous proceeding, that that section is capable of application to the plaintiff and that the Board would be capable of reaching satisfaction as a matter of construction or as a matter of fact.  That is well beyond the scope of this proceeding, particularly because the Board has not yet embarked upon consideration of whether the plaintiff falls within the class in subsection (1).

It may be that ultimately this does tend in favour of the States’ argument that the Court should not embark upon the task of making final orders in relation to this section and I needed to flag that the plaintiff might have further – if the sections survive, there may be further controversies about whether or not it applies to him ‑ ‑ ‑ 

KIEFEL CJ:   But you are not arguing them in these proceedings.

MR HORAN:   No.  In one sense, they may be.

KIEFEL CJ:   You mean in a different factual scenario?

MR HORAN:   Yes, in the future, if and when the section is applied to him, although it is the case, probably, that if section 74AB is valid there is no need or scope for the operation of section 74AAA because it will be essentially ‑ ‑ ‑

EDELMAN J:   Its own regime.

MR HORAN:   Yes, but also there will be no utility in – the Board will never get to section 74AAA unless we succeed in striking out section 74AB, which quite clearly applies in terms to the plaintiff.  Really, the issue will become academic if section 74AB survives challenge.  The real question is:  if the Court does hold section 74AB invalid, should it say anything or consider the validity of the similar operation of section 74AAA.  The State said that is premature.  To some extent I am not disagreeing with that point.

NETTLE J:   If you do disagree with it and you do not advance the argument, would you not be in trouble under UBS v Tyne? 

MR HORAN:   Is this in terms of what?

NETTLE J:   Abuse of process for not bringing forward that which can be brought forward within this proceeding.

MR HORAN:   We say it would be a separate proceeding to the case that we run here.  It may be that ultimately the Court does not need ‑ ‑ ‑ 

KIEFEL CJ:   There is nothing in the factual scenario that you posited as the foundation for some later argument.  The possibility of that arising does not prevent you from presenting a full argument today, does it?

MR HORAN:   We have presented a full argument insofar as we say that all of the things we say in relation to section 74AB(3) we say equally in relation to 74AAA(5).  Each of our propositions applies in exactly the same way in relation to the operation of that section.  The only additional points would be whether or not the section applies to the plaintiff, and that, as I say, is a question of the construction of the case and the application of the section which has not yet been reached.  If it were assumed that it did apply to him, we say it would be invalid for the same reason.

It may be that that does not form a sufficient substratum for the Court to make orders in relation to its invalidity, and it may be something that is left to be assessed in the light of the Court’s reasons in relation to section 74AB.

I only wanted to mention it upfront, not to get side‑tracked.  I will be presenting the argument chiefly in relation to section 74AB, which, because of its specific operation, is of the most immediate concern to the plaintiff and it may be that it is sufficient simply to have a ruling on the validity or invalidity of that section and not reach the formal consideration of the equivalent section.

Returning to section 74AB, the plaintiff makes the following submissions about the proper construction and characterisation of the requirements imposed by that provision.  The first point we make is that the relevant requirement to which I referred earlier that the plaintiff cannot be granted parole until he is in imminent danger of dying or is seriously incapacitated we say is not merely a change in the conditions governing the exercise of the power to grant release on parole.

Rather, we say the section is a withdrawal or removal of the power to make a parole order.  So contrary to the defendant’s submissions, that requirement does not simply affect the conditions that must be satisfied before a grant of parole may be made.  It operates as a restriction on power that the order may be made only if the condition is satisfied and it must be satisfied before the Board even has power to consider whether the grant of parole is justified or appropriate, rather than a condition which arises in the course of exercising the power such as whether or not the making of the order is justified.

So ordinarily the Parole Board will exercise its powers under section 74 at an appropriate time close to or after the end of the non‑parole period to consider whether or not an order should be made that the prisoner serving the sentence should be released, and that is done by reference to all the considerations that the Board would ordinarily take into account.  But none of that consideration is engaged in in relation to the plaintiff unless he can first overcome the threshold requirement of demonstrating that he is in imminent danger of dying or is seriously incapacitated.

We say the effect of that is that the plaintiff must serve a longer period before becoming eligible for parole and the practical effect of the provisions and their operative purpose is to deprive the plaintiff of any relevant prospect of release on parole during his lifetime.

Another way of putting this is we say the provision is directed to the underlying eligibility to be released on parole rather than whether or not the plaintiff should in fact be released on parole.  We say the former – that is, eligibility – is a matter that is judicially determined by the fixing of a minimum term or non‑parole period as a part of the sentence and the latter – whether the plaintiff should be released – is an administrative function to be exercised by the Board in accordance with the legislation and policies as enforced from time to time.

So to that extent, that distinction on which the State relies, the accepted distinction between the judicial function imposing sentence and the administrative function in deciding on release on parole, is accepted for present purposes but it does not answer the point that these conditions are directed not simply to whether or not the plaintiff should be released but whether or not he is eligible to be released or to be considered for release.

Now, that language, “if, and only, if”, which is used in the sections considered in both Knight and in Crump, was addressed in passing by the Court in Crump, at paragraph 60, who noted that that requirement “if, and only, if” qualified the jurisdictional facts which had to apply in order to enliven the power of the parole authority to make an order directing the release of the plaintiff on parole.  It is that concept of enlivening the power and demonstrating eligibility for release on parole on which we place great weight.

The second point to note about this condition is that the condition to which the Board’s power is relevantly subjected in inherently temporal in character.  In substance and effect, the requirement is that the plaintiff cannot be granted parole until a future time; namely, when he is in imminent danger of dying or is seriously incapacitated, and at that time, and only at that time, the Board may proceed to consider the questions of risk to the community and whether the making of a parole order is otherwise justified.

The effect of that temporal condition in substance is to require the plaintiff to serve a further period during which he is not eligible to be released on parole, which is in terms the way in which the non‑parole period fixed by sentence is described both in sentencing order but also in the Sentencing Act. 

Although the further period is one of indefinite duration, it is in all probability one that will be extremely lengthy.  So we say the operation and evident purpose of this section is no different to that of the former section 74AAA, which was described by this Court in the previous proceeding, Minogue (No 1), at paragraphs [9] in the plurality and [98] in your Honour Justice Gordon’s judgment of being:

to limit the circumstance[s] in which parole may be granted . . . to the end of –

a prisoner’s life or, to use the words from your Honour Justice Gordon’s judgment:

to a narrow window at the end of –

his life.  The consequence of that, as the plurality observed at paragraph [47] of Minogue (No 1), “is effectively to deny” the plaintiff “an opportunity for parole” by imposing that threshold condition before its power is enlivened.

BELL J:   Mr Horan, just looking at this first way the argument is put, namely, that in its practical operation and effect, the provision extends the minimum term by effectively making the plaintiff ineligible for parole, how do you distinguish that, as I see it, essentially same argument in Knight dealt with at paragraphs 6 and 29?

MR HORAN:   Yes.  I need to come fairly shortly, if not now, to the status and effect of the decisions in both Crump and Knight for our case.  We say essentially the distinguishing factor is that the argument that was considered and determined in Knight was focused on the effect of that condition in altering or varying the sentencing order. 

So that is why using the language of extending the non‑parole period is perhaps less apt than looking at the legislation as one imposing an additional non‑parole period or an additional period during which the plaintiff is ineligible because the essential distinction is, as the Court said in Knight at paragraphs 5 and 6, the question was put in terms of the Kable principle and the relevant argument is identified at paragraph 5 as being that:

the section interferes with the sentences imposed by the Supreme Court.

The argument then failed at paragraph 6:

because neither in its legal form nor in its substantial practical operation does the section interfere with the sentences imposed by the Supreme Court.

As we have put in writing, we accept – for present purposes, we do not contend in this case that the legal effect or the operation of the section is to alter or interfere with the sentences.  They stand as the definitive exercise of judicial power that quelled that controversy raised in that proceeding and resulted in a sentence not of life imprisonment but of life imprisonment with a minimum term of 28 years.

That sentence, we accept, stands and remains in force.  The difference in this case is that we say because that sentence is the exhausted judicial power to quell that controversy, it precludes a further exercise of judicial power, if it be so, by the Parliament to impose an additional period of ineligibility.  So it is an argument which would no doubt be equally available in relation to section 74AA but it is an argument that was not squarely raised in Knight.

BELL J:   In the way that the Knight challenge was conducted, if one goes to paragraph 29 of the decision at 323, going over to 324, it is said that:

By making it more difficult for Mr Knight to obtain a parole order after the expiration of the minimum term –

the provision did not:

contradict the minimum term that was fixed.

Another way of putting that might be to say the provision now challenged does not extend the non‑parole period, and then the Court went on to say:

Nor does it make the sentences of life imprisonment “more punitive or burdensome –

As I understand it, your contention is that effectively there has been an exercise of judicial power by the Parliament extending the non‑parole period and amounting to additional or new punishment.  It seems not clear to me how you maintain that argument against the analysis at paragraph 29 in Knight.

MR HORAN:   Yes.  Ultimately, although we say that from a strict precedential viewpoint the decisions in both Knight and Crump did not consider our argument and therefore strictly speaking can be distinguished, we do not shirk from seeking leave to re‑open the decisions to the extent that they are implicitly inconsistent with any argument we put in this case.

KIEFEL CJ:   You are seeking leave to re‑open.

MR HORAN:   We do, and the essential reason is that that paragraph is the most difficult to reconcile with the arguments we put in this case insofar as it says that the ‑ ‑ ‑

GORDON J:   It is really the last two sentences of 29 that are, in effect, real hurdles for you as well, are they not?

MR HORAN:   That is correct.  We say two things about them.  One is that when one looks at the source authority for that proposition, it comes from the case of Baker v The Queen, at paragraph 29.  That is a case that was not concerned with sentences of life imprisonment with a minimum term.  It was made in the context quite squarely which was dealing with legislation which affected the circumstances in which the prerogative of mercy might be available in relation to a prisoner sentenced to life imprisonment. 

That, we say, does not raise the issue as is raised in the present case.  It was also raised in Knight but perhaps was not appreciated in the arguments put in Knight because they focused on alteration or inconsistency with the sentence in a manner that affected the institutional integrity and independence of the Supreme Court.

We, on the other hand, say not so much that it extends the non‑parole period but that it imposes a fresh or new non‑parole period in much the same way that a court would do if an offender were brought back for further sentencing on a different offence.  An order could be made judicially to alter or extend or change the non‑parole period.

GORDON J:   Is that right, given what appears at the foot of 27?  It seems in Knight that that very issue was being addressed, was it not?  That is, the fixing of the minimum term says nothing about whether or not the person is going to be released.

MR HORAN:   That is correct, it does say it.  We accept that it does not say anything at all about whether or not he would be released.  I will go to the authorities of Power and Bugmy shortly.

GORDON J:   Those cases are authorities for the proposition that the sentence is the life imprisonment and that expiration of the minimum term is, yes, part of the sentence, but at the end of the day what is imposed is life imprisonment and whether or not the Executive then extends mercy is a separate consideration and not part of the judicial power.

MR HORAN: The sentence is a sentence of life imprisonment with a fixed minimum period during which the prisoner shall not be eligible to be considered for release. It is perfectly consistent with that to say that it is a matter for the Board whether or not to order release and that there is no entitlement or guarantee to release at any particular time whether at the expiration of the non‑parole period or at any time thereafter if the circumstances do not warrant it, if rehabilitation has not been achieved or shown, if there is any risk to the community, noting that section 73A makes it a paramount consideration that safety of the community be taken into account.

We do not say anything in derogation of that proposition but what we do say is that the opportunity to be considered for release cannot be withdrawn.  It is one thing to say that by fixing the minimum term the court is not saying anything about whether or not the prisoner should or will be released at any particular point in time but it is saying not that an order for release must be made but that it may be made at and beyond a particular point.

GORDON J:   The problem here is that it could still be made; it is just that the conditions upon which it must be taken into account have changed.

MR HORAN:   Yes.  Well, that is where we need to ‑ ‑ ‑

GORDON J:   That is where you need to get to, do you not?

MR HORAN:   Well, we dispute ‑ ‑ ‑

GORDON J:   You do not challenge the fact that there is a sentence which remains reflective of the gravity of the offence for which the person was found guilty.  The minimum period has not changed; it is the conditions for the grant of or considerations to be taken into account by the Board have changed.

MR HORAN:   Yes, and that is where everything comes down to our characterisation of those conditions.  We say that this is no different to a law which would say, in the case of prisoner A or a class of prisoners, the Board may not make an order for parole until two years after the expiration of the non‑parole period.

EDELMAN J:   In other words, the conditions as a matter of substance are not really conditions at all.

MR HORAN:   No.  One can see how enticing it is to regard them as the same as a change to substantive or procedural conditions that apply in the exercise of a power to grant parole.  In part they are equally premised, along with all of the other conditions, on the satisfaction of the Board.  They require a report by the Secretary, and so on, but essentially they are, as the Court noted in Crump, jurisdictional facts that enliven the power of the Board, rather than being things the Board considers in the course of deciding whether or not to grant parole.

So it becomes a question of construction and characterisation but if, for example, hypothetically the Parliament cannot pass a law in relation to an offender who has been sentenced to a non‑parole period of three years and whether that is because of public outcry about the inadequacy of the sentence or some other more general policy that prisoners should serve slightly longer in prison before they can demonstrate rehabilitation, we say that the Parliament could not in relation to a particular prisoner or a class of prisoners say you need ‑ the Parole Board cannot consider your application for parole until two years after the expiration of the parole period, or section 74 could not be amended to say the Board may make a parole order directing release not before the end of the non‑parole period.

EDELMAN J:   Is the flipside of that argument that, if properly characterised, the provisions like subsection (3)(a) were properly to be seen as conditions then they would not be invalid?

MR HORAN: If they were conditions that were capable of being met, they could make it more difficult or easier to obtain parole. If I could give two examples of conditions that have been brought in where we accept that changes can apply to prisoners serving existing sentences: one is section 73A, which now requires and was brought in long after Dr Minogue was sentenced, but now requires that “safety and protection of the community” is a paramount consideration “in determining whether to make or vary a parole order”. We accept that that might make it more difficult to get parole in a particular case but one could not say that that does not apply.

The other aspect is in relation to the legislative policies or practices that apply and one example of that is section 74(1AAB), which since last year has required the Board to have regard to what is described as “terrorism risk information”.  Now, again, that is a change to legislation and practice which would apply to any application, including existing prisoners, but one reaches, we say, a different area when one has a condition that says a parole order cannot be made for a particular period or during a particular period.  So, ultimately, our argument depends, in answer to your Honour Justice Edelman, on characterising the first part of paragraph (a)(i) as being a temporal condition that applies during a period because what else can it be? 

It is an agreed fact that the plaintiff whose non‑parole period has expired and whose parole eligibility date in form has passed is not in imminent danger of dying or seriously incapacitated.  On that agreed fact, that means that the section must be operating now and be likely to operate for the foreseeable future to preclude the grant of parole for a period of time.

BELL J:   My recollection is that it was not in issue that Mr Crump was not in imminent danger of dying or totally incapacitated.  I am having difficulty seeing the distinction between this aspect of your argument and Crump in that in that case whilst Mr Crump had initially been sentenced to a term of life imprisonment with no minimum term, he had subsequently by judicial order been resentenced, including to a sentence with a minimum term. 

In relation to that, at paragraph 56 of the decision in Crump on page 25 going over to 26 the Court recorded the argument as that:

the State legislature lacked the power to . . . otherwise stultify the effect of –

Justice McInerney’s judicial order setting the minimum term.  When one goes over to paragraph 60 the Court rejects that argument for the reasons there given.  Now, you have said you need to re‑open Knight.  I am having difficulty seeing how you can succeed on this argument without re‑opening Crump.

MR HORAN:   Essentially, our application to re‑open is in relation to both Knight and Crump, and it is for the reason that, firstly, the argument and the questions posed in those cases did not expose the issues that have been exposed by the present case.  We do say that the decisions on one view ‑ and we have cited Coleman v Power (2004) 220 CLR 1 at paragraph 79 in our submissions ‑ Justice McHugh noted that a:

case can have no wider ratio decidendi than what was in issue in the case.

Given that the arguments in Crump – his Honour Chief Justice French, at paragraphs 4, 30 and 38, made it quite clear that it was, similarly to Knight, directed at this argument of alteration or varying the sentence, being in that case, as your Honour Justice Bell has pointed out, the re‑sentence by the Court.

GORDON J:   The problem with that is that in 36 and 37 Chief Justice French sets out in relatively explicit terms a number of propositions which will be directly contrary to what you are putting, are they not?

MR HORAN:   No, with respect, because we ‑ ‑ ‑

GORDON J:   Including citing Chief Justice Gleeson in Baker.

MR HORAN:   None of the propositions there taken individually or cumulatively is fatal to our argument in this case.  We may have to steer between Scylla and Charybdis to get through the thicket of propositions, but we do not say that the legal effect of these provisions is altering anything in the original sentence.  In fact, it is the fact that that original sentence was made that highlights the additional operation of these provisions over and above the sentence.

As I have earlier submitted, other propositions there, such as the ability to change the laws, policies and practices in relation to parole from time to time, we also accept that a distinction needs to be drawn when one gets to the point of imposing a temporal preclusion from considering parole.

NETTLE J:   Do you contend that the Parliament of Victoria could not abolish parole?

MR HORAN:   Ultimately we probably do but I do not think we need to go that far in this case because in relation to existing prisoners there would be serious issues as to whether or not the Parliament could abolish parole altogether without dealing with, in a transitional or other way, every prisoner who had been sentenced on the basis that a component part of the sentence was the non‑parole period.

NETTLE J:   If that gives the prisoner no right or expectation to parole but only a knowledge that the earliest point at which the State – I use the expression broadly – may choose to exercise its power to release the prisoner on parole, what is the loss if it is abolished?

MR HORAN:   The loss is the loss of the opportunity.  I will turn shortly ‑ ‑ ‑

KIEFEL CJ:   Are you in the area of legitimate expectations?

MR HORAN:   Not quite, although we do say in relation to our rule of law argument that the effect of this law on the expectations of both the plaintiff and the community is relevant to whether or not this law offends any constitutional implication in relation to the rule of law. 

One hesitates to put it as a right or entitlement but it is an effect of the sentence and it is part of the punishment imposed by the sentence to fix a minimum term during which parole is unavailable and then after that time the decision whether or not to release passes to the Executive, the prisoner having served the minimum period that the sentencing judge has determined is in the interests of justice, and it is for the Executive to judge whether or not the purposes of the sentence have been fulfilled in terms of rehabilitation and protection of the community but at that point the prisoner should be entitled to be eligible to be considered for parole.

KEANE J:   Why is not it a matter for the legislature to decide whether or not there would be a parole regime?

MR HORAN:   Again, I do not need necessarily to ‑ ‑ ‑

NETTLE J:   I think you do.  We are at the core of the matter.  Parliament created the parole regime; Parliament can take it away again if it chooses to do so, surely.

MR HORAN:   We would say, firstly, it has not done so in relation to all prisoners so that raises a separate point about the arbitrary nature of the discrimination selected in the present case but we say that it could not ‑ ‑ ‑

EDELMAN J:   It would have to come down, on your submission, to the same question of characterisation, would it not?

MR HORAN:   Yes.

EDELMAN J:   That, if properly characterised, the law was not really a law abolishing parole but was a law that was intended to extend minimum sentences then you would say it is invalid but, if properly characterised, it would just be a consequence of the abolition of parole that minimum sentences are extended, but not the purpose of the law, and then it may be valid.

MR HORAN:   That is correct.  I think we would say that in the unlikely event that the State were to abolish parole in general terms, we say that the same vice would probably arise in that it would involve, in relation to the many prisoners to whom it applied who were serving existing sentences, the imposition of a further period of ineligibility for parole. 

The point becomes more acute when one looks at its impact on a provision directed at a particular prisoner and at the risk of – to counterbalance the hypothetical at the broader end of the spectrum, if one looks at an example at the narrowest end of the spectrum, if a sentence is passed on prisoner or defendant A, sentencing him or her in respect of a notorious offence to 10 years head sentence and a non‑parole period of three years and there is a community outcry as to the inadequacy of that sentence, in particular often focusing on when the person is able to walk out of prison and the response to that is generally that the Crown considers whether or not the sentence can be appealed and corrected judicially on appeal if it is manifestly inadequate.

Now, we say that that is the legitimate and orthodox way judicially to deal with the length of the non‑parole period, not by the Parliament simply saying that prisoner A shall serve three additional years without being eligible for parole or that the Board shall not make a parole order in relation to prisoner A unless and until a particular fixed date or until three years after the parole eligibility date. 

In form and substance we say that that cannot be regarded as simply adjusting the conditions on which parole is granted.  It is imposing a further period of ineligibility which there is no doubt when done by the court is done as a judicial power and as an imposition of punishment.  We say it should not be characterised any differently when done by Parliament because it is an essential and exclusive judicial power.  It is not something which is functional that can change character depending on the body to which it is entrusted.

BELL J:   Mr Horan, do you accept that in issue in Crump was the capacity of the Parliament of New South Wales to legislate to set aside, vary, alter or otherwise stultify the effect of the court order setting the minimum term for Mr Crump?

MR HORAN: We accept that the argument was presented in those terms, with the caveat that the stultifying effect was perhaps ejusdem generis with the earlier terms, that the focus was on the alteration or varying of the court’s sentencing order. One sees that in the question that was formulated for answer by the court. When one looks at the orders made by the court, the question was whether section 154A in its purported application to the plaintiff was invalid in that it had the effect of varying or otherwise altering a judgment, decree, order or sentence of the Supreme Court of New South Wales in a matter within the meaning of section 73.

The focus was very much on the interaction or intersection between the provision on the one hand and the subsisting sentencing order on the other, as was the focus in Knight on that intersection between those two things.  Our case does not rely on any impermissible intersection between the provision with the operation of the sentence that was imposed.  It does not alter it or vary it.  We say it is precisely for that reason that the Parliament cannot, in respect of the same criminal conduct, dictate that a further period of ineligibility for parole should be served before the Board can get to considering the questions that would arise on a parole application.

KEANE J:   So is your argument that the Parliament cannot interfere with the functions of the Board?

MR HORAN:   No, it is that the Parliament could replace the Board with a different body.  As I have said, it can change laws and policies and practices applicable to parole applications, but what it cannot do is impose on the prisoner a further period of ineligibility ‑ in this case a very lengthy one.

A lot hinges on that characterisation.  I must say for our argument that one has to look at the substantive operation and the practical effect of the section but we say it would be a triumph of form over substance to regard a provision like this, which is in terms directed at precluding an opportunity for parole until a narrow window at the end of the plaintiff’s life as being anything other than a temporal condition that imposes a further period during which parole shall not be granted.  That is the function of the non‑parole period imposed as punishment by the court.

KEANE J:   One can understand why the argument was made in Crump and Knight that, for the Parliament to do that is to interfere with the exercise of judicial power.  One can understand that argument.  In the end it was rejected.  The difficulty one has with the argument you are now presenting is that if you take an interference with judicial power out of the picture, one is left to ask:  what is the inhibition on the legislative power of the State of Victoria to do precisely that?

MR HORAN:   I will come to that.  We say the inhibition is that it is not legislative power; it is judicial power.  It is perhaps similar to the issues that ‑ ‑ ‑

KEANE J:   So it is the exercise of power that is judicial in nature that is bad because it contradicts an earlier exercise of judicial power?

MR HORAN:   No.  It is because it ‑ ‑ ‑

KEANE J:   Because the State of Victoria cannot make legislative judgments?

MR HORAN:   Yes.  Legislative punishment for criminal conduct we say is essentially judicial and ultimately my next or next again proposition depends on taking the next step of saying that the State Parliament, no more than the Commonwealth Parliament, can enact a bill of pains and penalties which imposes a legislative punishment for criminal guilt.

The Parliament cannot try an offence or set up a chamber of Parliament or a committee of Parliament to try offences and impose punishments.  That is, the imposition of punishment for criminal conduct is exclusively judicial.  The question then becomes whether or not ‑ it is really the antecedent question about whether or not that is the proper characterisation of this law.

KEANE J:   In making this argument you are also putting out of the picture the fact that your client was sentenced to life imprisonment.

MR HORAN:   He was sentenced to life imprisonment with a minimum term of 28 years.

KEANE J:   Yes, on the assumption that there is a regime about parole and that there will be such a regime in existence in 28 years’ time.

MR HORAN:   There is but not for him.

KEANE J:   No, because ‑ ‑ ‑

GORDON J:   There is, but it has been changed.

KEANE J:   It has been changed.

MR HORAN:   It has been changed in a way that withdraws the system of the availability of parole and in a sense ‑ ‑ ‑

GORDON J:   That is where we come back to.  We have a life imprisonment which is said to reflect the gravity of the offence and which remains the sentence and nothing has changed about that – that is one issue.  Then you are driven back to, well, what has the minimum term achieved as a part of that determination?  All of those authorities talk about it being part of the mercy and part of the Executive, changes over time.

As Chief Justice Gleeson said in Baker, systems change.  Sentencing judges know that.  So an assessment is made at the time knowing that whatever happens down the track judges cannot deal with it.  It is left to the Executive, it is left to the legislature to pass the system.  They put it in place.  At the end of the day, you have to say, do you not, as Justice Edelman put to you, that these conditions alter something which is impermissible outside of all of those principles?

MR HORAN:   Yes, and we do.

GORDON J:   What is that ‑ ‑ ‑

MR HORAN:   We do not necessarily put it as altering the sentence.

GORDON J:   Then what is it altering that is impermissible?

MR HORAN:   It might be altering or stultifying the effect of the sentence and to that extent we may need to be ‑ ‑ ‑

GORDON J:   It does not stultify the life imprisonment, and this is why you are driven back to ‑ ‑ ‑

MR HORAN:   No, but this is ‑ the proposition with which we take fundamental issue at the outset is we say it cannot be ‑ even though the Parliament sought to misdescribe the sentence – and my learned friends continually seek to misdescribe the sentence as one of life imprisonment – the head sentence was of life imprisonment.  The sentence was one of life imprisonment with a minimum term of 28 years.  I will come in a moment to what the minimum term represents but ‑ ‑ ‑

GORDON J:   That is a very important issue because that is the question:  what does it represent, having regard to what the authorities have described it as ‑ as part of a sentence, yes, it is able to be appealed and all of those things but it has been said on more than one occasion that it does not create any right or expectation in the prisoner.

MR HORAN:   No, and we do not assert any such right or expectation. 

EDELMAN J:   That is why your submission has to be, must it not, that it is altering the sentence?  You do not necessarily put it in that way but that is what your submission has to boil down to, does it not?

MR HORAN:   We do not think it has to boil down to that.  To the extent that Knight and Crump are re‑opened, we do not resist that approach, but we say that one does not need to treat this as altering the sentence because what it does is in circumstances where the judicial system has quelled a controversy by imposing a punishment which was both – and the Court in PNJ v The Queen stressed both the head sentence and the minimum sentence are the appropriate punishment, that the Parliament cannot simply impose a different minimum term on top of an existing minimum term; that would be to impose different and additional punishment.

Coming back to what the minimum term represents – I will go briefly to a couple of authorities for this purpose – what we say is that as well as being a part of the sentence which forms part of the punishment that can be subject to appeal and that is relevant for purposes of parity, we also say that that minimum term when fixed is fixed by reference to the same considerations that inform the fixing of the head sentence.  All of the criminal objects of retribution, deterrence, specific and general, denunciation all feed into whether or not to fix the minimum term and the length of the minimum term.

In the present case the sentencing judge, at special case book 62, in the sentencing remarks, took into account all of those matters ‑ denunciation, deterrence and the like – when imposing this sentence.  But then, when coming to the question whether to impose a minimum term and the length of the minimum term, it was done quite deliberately to reflect, firstly, parity with the sentence that was imposed upon the plaintiff’s co‑offender, who was sentenced to life without a non‑parole period.  So that initial judicial determination on the facts of the particular case of whether it was inappropriate to fix a minimum term resulted in differing determinations for the plaintiff and the ringleader, if I may call him that, Mr Taylor.

The second was that the court took into account, in addition to objects of deterrence and denunciation, the prospects of rehabilitation and the relative age and differences in prior criminal history.  One has a tailored sentence by which the court says, in a way that is amenable to appeal, that it was appropriate to fix a minimum term and the minimum term should be a particular length. 

The State, through the Parliament, now wants to, in one sense, achieve what it did not or could not achieve by way of appeal at the time of the original sentence, and that is to impose a longer period that must be served before any consideration can be given to the plaintiff’s release.

Now, in relation to the purpose of a minimum term, we have said in our written submissions that the fixing of a minimum term is an integral part of the sentencing process, and cited the case of Shrestha at page 61 in support of that but it has been repeatedly affirmed that the minimum term is part of the sentence, and in fact the Sentencing Act so provides in express terms, but it has been judicially accepted that the minimum term forms a part of the punishment that is imposed and, as such, is a clear example of the exercise of judicial power.  Chief Justice French in Crump acknowledged that at paragraphs 9 and 27, as in Leeth v The Commonwealth at pages 470 to 471 the Court also acknowledged the same.

We say the purposes of a minimum term remain punitive and for that reason when fixing a minimum term the court does not simply assess the prospects of rehabilitation and fix at point at which there is a judicial assessment that the plaintiff will be sufficiently rehabilitated to warrant release. 

The minimum term itself takes into account all of the other objects and that was affirmed by Chief Justice Mason and Justice McHugh in the case of Bugmy (1990) 169 CLR 525 at pages 530 to 531. In that case their Honours were in dissent but their Honours said there at the bottom paragraph:

It has been said that “[t]he intention of the legislature is that a minimum term is a benefit to the prisoner”: Iddon &Crocker . . . and so it is.  The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole –

referring to section 74 of the Corrections Act:

But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner’s prospects of rehabilitation.

In other words, the minimum term is fixed as a judicial assessment of the point at which or the time before which release of the prisoner would not be in the interests of justice having regard to the criminal conduct reflected in the conviction.  In relation to the appeal, we did cite in our ‑ ‑ ‑

BELL J:   Just before you leave the discussion of minimum terms, I think it is necessary to refer to Power v The Queen 131 CLR 623 at 628 going over to 629, where the Court notes:

We think nothing is to be gained by regarding the power of the paroling authority to release from prison as converting the full sentence into an indeterminate sentence . . . 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.

There is some discussion in Power of the distinct functions both of the sentencing judge and the parole authority.

MR HORAN:   That is right, but what we say here is that those functions of the parole authority have been excluded, so the distinction that is premised there that there is a minimum term and a maximum term but in truth one sentence, the point that was being made was unlike I think in other jurisdictions where the minimum term is regarded as serving particular objects of criminal punishment such as retribution and deterrence and then beyond that point the balance of the sentence is for purposes of rehabilitation and Power rejects that outright and says, the purposes do not differ before or after the expiry of the non‑parole period.

What their Honours say just above the passage that your Honour Justice Bell referred, at the top of page 628, is that after saying:

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 on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can.

So the difference is that after the minimum term set by the court as being an appropriate minimum time before which it would not be in the interests of justice or according to law for the prisoner to be released, after that time he can be released but subject to the discretion of the Executive in the form of the parole authority.

We accept that but the plaintiff is denied that function, the function has been withdrawn, and it has been withdrawn by effectively the legislature second guessing the sentence by putting the prisoner back in the period referred to before the expiration of the non‑parole period, i.e. no prospects of an order for parole.

Now, we say again it comes back to this characterisation that that is a temporal withdrawal of power to grant parole and as such it is akin to what the court does when it fixes the minimum term and that is it is fixing a different punishment in a manner that constitutes judicial power.

Now, just before leaving this my next proposition which perhaps I can address after the break was just a short proposition that increasing the minimum term is increasing the severity of the punishment and there is a couple of cases I needed to mention in relation to that, in particular insofar as they fit against the obiter from Baker which is relied upon quite heavily in Crump and Knight but perhaps it would be an appropriate time.

KIEFEL CJ:   Yes, thank you.  We will take the morning break.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ:   Yes, Mr Horan.

MR HORAN:   Your Honours, could I just make two short points, firstly about the purpose for a minimum term and the second in relation to its effect.  In relation to the purpose, if I could take your Honours back to the case of Bugmy v The Queen (1990) 169 CLR 525, which is at tab 26 in the authorities. At page 538, Justices Toohey, Dawson and Gaudron addressed the nature and purpose of a minimum term in the sentencing process. Their Honours relevantly made clear there that:

in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole –

Then their Honours cite a passage of Justice Jenkinson in a case of Morgan and Morgan, to the effect that:

The . . . minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify.”

Connected with that, we say that it has been accepted that that term “when fixed”, as I mentioned before, is fixed, like the head sentence, to reflect the gravity of the offence, and it is fixed by reference to similar objectives.  We have referred to a case at tab 39 in the Victorian Court of Appeal of Hudson v The Queen (2010) 30 VR 610, at paragraph 45, where the court there notes that the non‑parole period, which in that case was a period of 35 years was described as:

The non‑parole period contained an important penal element –

EDELMAN J:   Where is that, paragraph 35?

MR HORAN:   At paragraph 45:

which reflected the need for condign punishment that would satisfy the requirements of denunciation and general and specific deterrence.

It is consistent with treating the minimum period as being fixed, not simply by reference to prospects of rehabilitation or even protection of the community, which of course is very difficult to assess long into the future, but as fixing a term which is the minimum period which should be served having regard to all the circumstances of the offence.

In relation to the effect of the minimum term once fixed, if I could refer your Honours to the case of Shrestha (1991) 173 CLR 48, which is at tab 67. At pages 72 to 73 Justices Deane, Dawson and Toohey draw this distinction to which reference has been made in argument between the fact of release and eligibility for release. Their Honours say right at the bottom of page 72:

As has been said, a sentencing judge is not ordinarily required or empowered to determine whether a convicted person should in fact be released on parole at some future time.  He or she is concerned to decide whether a prisoner should be eligible to be considered for release on parole at that future time. 

That concept of eligibility, we will see in a moment, is directly reflected in the legislation, but before coming to that if I could take your Honours just to a short passage in Leeth v The Commonwealth of Australia (1992) 174 CLR 455, which is at tab 47. Justice Brennan, at page 472, talks about the legal effect of fixing the minimum term. His Honour says right in the middle of that page at about point 5:

The fixing of a minimum term of imprisonment has become a familiar part of the sentencing process, but the legal effect of a court’s fixing of a minimum term is to enliven an executive power to release on parole a prisoner who would otherwise be required to serve the head sentence, adjusted for statutory reductions and remissions.  The minimum term determines the date on which a prisoner, who is serving a head sentence, becomes eligible for parole.

When one goes to the legislation, the section under which the sentence in this case was imposed was section 17 of the Penalties and Sentences Act.  That section in terms empowered the judge to fix a lesser term called a minimum term, being a period during which the offender shall not be eligible to be released on parole.  So it directly echoes the concept of eligibility which has been expressed judicially in the cases to which I have taken the Court. 

KIEFEL CJ:   The concepts of eligibility are in the background of statutes which provide for an executive power which, without it, the court would not be making minimum terms.  This takes up the point Justice Nettle made.

MR HORAN:   It is the factum point, in a sense, yes.  At least so long as there is a sentencing system regime that provides for the imposition and administration of sentences in this form, we say it does have an effect of setting a period at which a prisoner shall be eligible to be released on parole.  The distinction there is simply to note that that does not detract from the proposition that the prisoner is not guaranteed or entitled to release at any particular time but the court has fixed a point from which the offender will be eligible.

That is reflected in the current Sentencing Act provisions, including in the definition of “non‑parole period”, which similarly picks up this concept of a period fixed during which the offenders is not eligible to be released on parole.  So if, as we submit, the provisions currently in issue go to that underlying eligibility to be considered for parole, we say they are denying the effect of the sentence not by altering the sentence but by, in effect, doing something akin to what could be done by the sentencing process, which is to fix a non‑parole period.

We say if that were to be done here, the appropriate means by which that should be done is through the appellate process and not through a legislative imposition of a period of ineligibility long after the sentence has been imposed.

The next proposition is the short one concerning the proposition that an increase in the minimum term constitutes an increase in punishment.  For that proposition, I note in passing that in the case of Power v The Queen, in the passage referred to earlier at page 628 their Honours noted that, after noting that the fixing of the non‑parole period was concerned with deterrence, it was noted in passing that:

imprisonment without a chance of release for a longer time, rather than for a shorter time, is within that objective –

that is deterrence.  So that if a court wants to denounce criminal conduct to a greater degree or to fix a higher deterrence, specific or general, it can do so by adjusting the length of the non‑parole period and it can do so even without changing the head sentence which, of course, in a sentence of life imprisonment is already incapable of being lengthened.

The proposition that the extension of the non‑parole period has the effect of increasing the severity of the punishment was accepted in Brown v Lusted, which is a Tasmanian case at tab 25, (2015) 25 Tas R 24, at paragraph 24 where the court there referred to its earlier decision in the case of Gill v The Queen, to the effect that both:

The making of an order by a sentencing judge that a prisoner shall not be eligible for parole, or extending the non‑parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison.

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

MR THOMSON:   As mentioned in paragraphs 2 to 3 of our oral outline of submissions, whether the Court gets to the point of considering the constitutional arguments in this case depends upon how the Court characterises the effect of the legislation here.

Assuming that the Court gets to the constitutional arguments, we say that they all depend upon establishing a proposition which is unsupported by authority.  That proposition is that altering or removing a minimum non‑parole period involves Parliament imposing an additional punishment upon the offender.

We submit that this proposition should be rejected, and that it is in substance contrary to the decisions of this Court in Crump and Knight.  Altering or removing a minimum non‑parole period does not involve a State Parliament imposing any additional punishment on an offender.  The head sentence of mandatory life imprisonment is not altered at all nor does an offender obtain any absolute, accrued, vested or immediately enforceable right under sentence administration legislation to be released upon the expiry of a minimum non‑parole period.  Two points have been emphasised in Baker, Crump and Knight about the effect of setting a minimum non‑parole period.

First, any rights which are obtained by the plaintiff always depend upon the continued existence of the relevant legislation.  To put it another way, there is no constitutional guarantee that sentencing administration legislation is required to continue or to apply to an offender who has a minimum non‑parole period set under it.

EDELMAN J:   Is this submission to say that the minimum sentence, or the minimum non‑parole period is not part of the punishment that is imposed by the sentence?

MR THOMSON:   It is part of the sentence and that leads to my second point, setting a minimum non‑parole period does not create rights in the sense of a positive and immediately enforceable entitlement which imposes a duty upon any other person.  The setting of a minimum non‑parole period provides the basis for a hope that the effect of a sentence of life imprisonment may not be fully enforced.  But can I say this:  without a minimum non‑parole period being set, that hope would not exist.

So that, in that sense, there is a determination of one necessary element of a complete, enforceable right, which may later arise.  That is sufficient for there to be an exercise of judicial power, and for it to be part of the sentence, however, no immediately enforceable right is brought into existence by the setting of a minimum non‑parole period.

BELL J:   Your submission is that Crump and Knight are consistent with the contention that it is open to Parliament to alter or remove a non‑parole period.

MR THOMSON:   Precisely.

BELL J:   Well, on one view, Crump and Knight take a rather different position, which is that there is no alteration to the minimum term and that may have some significance.  It seems your argument is going beyond either of those decisions.

MR THOMSON:   Yes, hence why I said at the outset you may not get to the constitutional argument, because of the way you have characterised the way in which the legislation operates in this case.  If it is characterised simply as setting conditions upon the Prisoners Review Board, or allowing parole, and it does not go to anything to do with the minimum non‑parole period, then the constitutional arguments do not arise.

EDELMAN J:   You must accept the minimum period for parole eligibility can be part of the punishment?

MR THOMSON:   Yes, I accept that.

EDELMAN J:   Then why stop at the minimum period?  Why not also allow amendment to the maximum period by legislation?

MR THOMSON:   Because the maximum period imposes and adjudicates an immediately enforceable duty and right whereas the minimum non‑parole period only sets into place an element of a right which may arise in the future.  That is the distinction.  So we say that is the effect of Knight and Crump, and that they should not be re‑opened.  They are the product of careful and recent reasoning, and they have in fact been relied upon, and relied upon specifically in Western Australia in relation to the multiple murderers legislation, which is cited in our submissions.

BELL J:   Accepting that to be so, is there some reason for developing an argument that is not the argument in Knight or Crump?

MR THOMSON:   It is in response to the argument that has been put by the plaintiff as to how you characterise and understand both what has happened in this case and how Crump and Knight should be understood.

BELL J:   So that Crump and Knight do not assist on the argument you put.

MR THOMSON:   Yes.

BELL J:   Yes, thank you.

MR THOMSON:   I then move to the question about whether the imposition of an additional punishment, if that is indeed what this is said to achieve, and whether it is contrary to the requirements of Chapter III apply what was said in Lim’s Case and Duncan.  The plaintiff refers to what was stated by Justices Brennan, Deane and Dawson in Lim, but that is about adjudicating guilt and then the imposition of a punishment. 

In this case, we say there is a very different situation.  At most, if there is any exercise of judicial power by the Victorian Parliament here, which of course we do not accept, it is not an exercise which adjudges guilt and imposes an additional term of imprisonment.  It is an exercise of judicial power which simply removes the hope that the effect of the head sentence may be reduced.  The plaintiff’s criminal guilt has already been determined and punished by a court imposing the head sentence.  The legislation under challenge here does not alter that in any way.  Nothing said in Lim or Duncan is concerned with that sort of legislation.

As well, in Lim, that was a case that was concerned with executive detention; Duncan was not concerned with any form of personal detention.  Here it is the case that the plaintiff is in prison pursuant to a judicial order.  We say that they are completely different.  We also say that, at least as accepted by this Court in Baker, there is no constitutional reason why a State Parliament should not be able to alter or remove the possibility of parole, even if that somehow technically does involve the exercise of judicial power.  We say that that is the case because Parliament is in fact not adjudging guilt, nor is it setting a maximum sentence which is in fact the setting of the right or the duty requiring the offender to be detained for a particular period of time. 

As well, we submit that there is no cruel or unusual punishment which would be contrary to Chapter III in altering or removing the possibility of parole.  The head sentence is not subject to any challenge.  The plaintiff appears to accept that it could be imposed by a court, even without a minimum non‑parole period, and that would not have been cruel or unusual.  We say there is no difference relevantly about the character of a sentence as cruel or unusual whether a court or a Parliament imposes it.

Lastly, in this respect we say there is no textual or other basis for a constitutional implication that Chapter III prevents legislative judgments either at all or which are cruel or unusual.  Chapter III is concerned with protecting the integrity of courts and has nothing to do with separate legislative exercises of judicial power by a State Parliament, and Kirk is not relevant in these circumstances.

The rule of law argument is the next thing that I will address briefly.  We say that the rule of law is simply a rubric which may describe a number of independent principles.  The particular principle which the plaintiff says applies here by reason of the rule of law is that laws apply equally to all, save to the extent that objective differences justify differentiation. 

In other words, what they are submitting is that the so‑called rule of law principle is said to prevent ad hominem legislation.  We say that is not a principle that is accepted by this Court.  Any suggestion that the rule of law prevents an ad hominem change in a legislative parole regime means that Knight is inconsistent with what is submitted because in that case it was accepted that a minimum non‑parole period for a named person was valid.  Those are our submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Anything in reply, Mr Horan?

MR HORAN:   If the Court pleases, I will ask Mr Solomon‑Bridge to address our submissions in reply.

MR SOLOMON‑BRIDGE:   May it please the Court.  Justice Gageler, in exchange with my learned friend raised the issue of whether there was a tension ‑ ‑ ‑

KIEFEL CJ:   You might need to speak up a little.

MR SOLOMON‑BRIDGE:   I am sorry, Chief Justice.  Justice Gageler earlier with my learned friend raised the issue of whether there was a tension with the proposition that a minimum term is a mere factum by reference to which the parole system operates and the proposition that it is also an exercise of judicial power. 

There is a tension, and we would submit that it is resolved in our favour.  There is also a tension with the proposition that the minimum term has an independent punitive quality.  If it is a mere factum – that is to say there is no operative effect unless and until it is imbued with some consequence by another branch of government, in this case by the legislation, section 74AB – then, in our submission, that is inconsistent with the well‑accepted notion that the minimum term establishes or is per se a punishment, notwithstanding a separate element of the sentence being the head sentence which the prisoner may be liable to serve depending on the discretion of the parole authorities.

If it were simply a mere factum, as I say, it would be a statement really hanging in the air and contrary to the propositions I have just addressed.  There were further exchanges with my learned friend and Justice Edelman and Justice Bell on hypothetical versions of a different law.  For example, Justice Edelman’s version was to the effect that if you simply said 35 years was the new minimum term, would that be a problem.  Justice Bell, I think, posed the hypothetical of if the law said the Parole Board may not release the prisoner until he has attained the age of 85 years. 

Mr Hanks frankly accepted that his position would be more difficult in that circumstance and he acknowledged the spectrum of possibilities – I think those were his words.  Ultimately, as my learned leader said at the outset, this is a significant matter of characterisation and whether it is characterised as an extra condition or whether it is the removal or the withdrawing of the power, and therefore a hope of release by the Board, is an important one.  And in that respect, I refer your Honours to Minogue (No. 1).  I will not take your Honours to it, but just note paragraph 47 in the plurality’s judgment, where the law since substituted was characterised as removing any effective opportunity for parole.

Lastly on that point, can I just say that to characterise those various hypotheticals as along a spectrum, as it were, is in my submission rather to engage in form over substance.  The fact of the matter is, according to the special case in paragraph 4, the agreed fact is that the prisoner is beyond the minimum term required by Justice Vincent to be served, yet does not have the benefit of the opportunity to be released by the Parole Board.

That is to say, there is a temporal quality to the fact that he cannot now been released, notwithstanding the expiry of the minimum term.  There was also some discussion about whether – and reliance on Crump and Knight in this respect, that we contended for the relevant sections to be interferences with the minimum term.  That is not how the case is put.

It might be best conceived as the minimum term being the tetris block of sorts.  And then by a separate exercise of judicial power, the tetris block has not changed – rather, an additional block has been put on top of it, which prevents the release of the prisoner, in this case the plaintiff, by way of the discretionary judgment of the Board.

That is also a complete answer to paragraph 26 of Knight, which was said to be a complete answer to our case.  The Court there, your Honours, were addressing the question of interference, and said there was no such interference and, as I say, that is not how it is put in this Court.

At the outset of his address, Mr Hanks said that this was not necessarily an end of life situation, that there was the possibility of an alternative criterion of consideration for release, which was serious incapacitation.  Again, the agreed facts here are that the plaintiff does not have that quality.  He is not seriously incapacitated and so, again, there has been a temporal extension, on any view, of the minimum sentence which he was required to serve by reason of the judgment of Justice Vincent.  It is also, one notes, not a contingency, serious incapacitation, like imminent death is not something, relevantly, within the control of the plaintiff in terms of how he comes to satisfy any of those considerations.

There was some discussion – I will not take your Honours again through it – but can I just note paragraph 29 of Baker and paragraph 34 of Crump.  It was said against us by Mr Hanks that this Court has made clear that judicial power has been exhausted upon the fixing of the sentence.  Now, that begs the very question in this case – that is to say, whether there has been a separate and additional exercise of power by, this time, the Parliament of Victoria after Justice Vincent’s judicial power was spent.

Indeed, that statement, as I have paraphrased it from Baker, implies that it would be inappropriate for there to be a further exercise of judicial power once it is spent at the level of the sentencing court.  It was also said in those same paragraphs of Baker, as quoted by Crump, that – your Honours might remember the reference to the power to reduce the effect of the life sentence did not make the judgment more burdensome or rather more punitive or burdensome to liberty.  I hope my learned leader addressed you at length this morning about how that was of course addressing a separate issue of Baker where there was no minimum term and a purely – or there was no judicial order that gave effect to a separate punitive quality the sentence which would enliven any hope of release at a certain time.

The last two points, your Honours, are these, and I can deal with them very briefly.  There was much emphasis placed on your Honours that your Honours should not re‑open Crump or Knight, and John’s Case was referred to.  In my submission, whether strictly those cases need to be re‑opened, ultimately your Honours’ discretion should be guided by the interests of justice, not necessarily in the same structured way as in John’s Case.

In my submission, they are factors to guide that exercise and, notably here, arguments about legislative punishment were not raised, at least in the way they are now, in those earlier cases.  Of course, in these sorts of

constitutional cases there should be an extra leniency in favour of an applicant or plaintiff who seeks to re‑open in his or her favour.

Lastly, there was a brief mention of the prerogative.  I think it was accepted as only theoretically available in this case.  Of course, in my submission, that does not change the character of the law.  The law as made, whether it is relieved by some later act of mercy, is either punitive or not, and it can be assessed on its merits.  And for the reasons my learned leader and I have given orally and for the reasons we have put in the written submissions, the law has that quality.  Those are the oral submissions, your Honours.

KIEFEL CJ:   Yes, thank you, Mr Solomon‑Bridge.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.

AT 4.01 PM THE MATTER WAS ADJOURNED