Minogue v State of Victoria

[2018] HCATrans 84

[2018] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M2 of 2017

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, 15 MAY 2018, AT 10.20 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, for the plaintiff.  (instructed by Darebin Community Legal Centre)

MS K.L. WALKER, QC, Solicitor‑General for the State of Victoria:   If the Court pleases, I appear with MR G.A. HILL for the defendant.  (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 A.M. MITCHELMORE, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor’s Office (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 of 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, MR J.L. WINTON, for the Attorney‑General for Western Australia intervening.  (instructed by State Solicitor) 

MR M.J. WAIT, SC:   If the Court pleases, I appear with MS F.J. McDONALD for the Attorney‑General for South Australia intervening.  (instructed by Crown Solicitor (SA))

KIEFEL CJ:   Yes, Mr Horan.

MR HORAN: Your Honours, the first issue is one of statutory construction which is whether section 74AAA of the Corrections Act is, in its terms, capable of application to the plaintiff or, in other words, whether the plaintiff is within the class of prisoners to which section 74AAA applies.

Your Honours will know the many authorities which establish that the accepted starting point for the construction of the section must be with the text of section 74AAA. We have referred to one example of those principles in the case of Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at paragraph 31 which emphasises the need to carefully consider the words of the statute to ascertain its meaning and emphasises that the legislative intention is that which is manifested in the statutory language as opposed to the words that may be used by a minister in extrinsic materials which, it is accepted, cannot be substituted for the text of the law. Their Honours in that case endorsed the observations in the earlier case of Re Bolton, Ex parte Bean and that that principle is especially acute when laws are restrictive of the liberty of the individual. 

Now, in the present case, turning first to the text of section 74AAA, the way in which the section operates is, in subsection (1), to identify a class of prisoner who is required by this statutory provision to make an application for a parole order under this section and outside of this section there is no express statutory requirement for an application for parole, although the practice pursuant to the Commissioner’s requirements has been for applications to be made and for parole to be considered by the Parole Board pursuant to applications by prisoners. But this is one of the few occasions where there is an explicit statutory requirement for an application to be made under the section.

The section goes on in the ensuing subsections to deal with the consequences of that application and makes provision for the manner in which the Board must consider the application and for what the Board must be satisfied of after considering the application.  And the substantive restriction imposed by the section is contained in subsection (4), which is that on the assumption that an application under this section is required the Board, after considering that application, can only make an order for parole under section 74 or section 78, which is the provision dealing with orders for parole of prisoners who had previously had a parole order cancelled.

Those orders can only be made on satisfaction of conditions which essentially require that the Board be satisfied 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 [he or she] does not pose a risk to the community –

And further:

the making of the parole order is justified.

Those conditions reflect the criteria or requirements that have been upheld in different contexts in the previous decisions of this Court in Crump and in Knight v Victoria.

Now, returning to subsection (1), the focal point of that subsection is on the words “convicted and sentenced”.  We say that the object of those words is conviction and sentence:

for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer –

as defined in subsection (6).  So, on a natural reading of those words, that is a composite object which is attached to the words “convicted and sentenced” and the natural reading of those words, we say, is that all of those matters are components or elements of the offence of which the prisoner was convicted.

The reference to “sentenced”, we say, does not extend the operation of the subsection in any relevant way.  The first and primary operation of those words is to signify that the prisoner must have been sentenced to a term of imprisonment with a non‑parole period.  And so the section would only need to apply to a prisoner who was, firstly, sentenced, to a term of imprisonment and, secondly, under that sentence there was a non‑parole period which would enliven the power to grant parole at the end of that period.

The second aspect of that word is that “sentenced”, we say, is a reference to the determination of the punishment as a consequence of the conviction and, as a result of that, it is practically inseverable or inseparable from the conviction itself.  But, in any event, the reference to “convicted and sentenced” means that it remains that the prisoner must be both convicted and sentenced, not convicted or sentenced for the requisite offence.  So, in other words, there must in order for the subsection to apply, there must be a conviction in respect of the relevant offence.

Now, the issue that is essentially joined between the parties is whether what I have called the object of those words “convicted and sentenced” is a composite description of a category of offence or whether it rolls up two separate factual elements, the first being conviction and sentence for an offence being the offence of murder, and the second being a separate question of fact directed to the mental state of the prisoner in connection with the commission of that offence.

The plaintiff’s submission is that the subsection is, on its ordinary language, referring to a category of offence and it can be compared with other sections in the division including the other new section that was inserted at the same time, section 74AABA which is the offence that applies in, I think the shorthand description is the “no body” provision where a prisoner – the Board must not make not a parole order in respect of the prisoner for certain offences unless satisfied that there has been co‑operation in the investigation in relation to the location of the body of the victim.

That section is admittedly drafted in slightly different language, but it refers to a prisoner serving a sentence of imprisonment for – and then a list of offences is given: 

an offence of murder, conspiracy to murder, accessory to murder or manslaughter –

Now, we say that this, rather than being a contrast to section 74AAA, is an analogue in that it is identifying a class of prisoner by reference to categories of offences of which in that case the prisoner must be serving a sentence of imprisonment for the relevant identified offence and in the case of section 74AAA the prisoner must be convicted and sentenced for the defined offence.

KIEFEL CJ: Does the possibility that section 74AAA involves a factual inquiry for the Board, is that supported by subsections (3) and (6) of that section?

MR HORAN: Of section 74AAA?

KIEFEL CJ:   Yes.

MR HORAN:   We say not, because the application of sections 2 and following can only apply if the jurisdictional precondition in subsection (1) has been satisfied, so that what the Board is required to do is to have regard to the record of the court in considering the application, but if a prisoner does not meet the category of prisoner defined or described in subsection (1) then there will not be an application under this section.

Now, as a matter of fact, there will be an application under the Commissioner’s requirement for parole which will then be considered under the general provisions or the ordinary provisions apart from section 74AAA. But the short answer to your Honour’s question is that we say that subsections (3) and (4) do not apply unless an application is required to be made under subsection (1) and that begs the question of whether the prisoner falls within the category of prisoners who is required to make such an application.

NETTLE J:   Mr Horan, how would it work given that murder is common law murder and one is convicted of murdering someone, not someone whom he knows to be a policewoman or is reckless as to whether she was or not?

MR HORAN:   The answer to that – the submission is put against us that this would mean that the section effectively would have no operation.  Now, we make a number of responses.  Our primary response to that is that the – it remains possible in relation to the prospective application of this section that there may be an offence created which specifically involves those aggravating elements. 

The second possibility is that in light of this section the prosecution and/or the defence may raise this issue specifically at a trial – a future trial, and seek a special verdict from the jury in relation to this element.  The third possibility, which can apply in a limited way to convictions before the commencement, and it is not quite embraced by our primary submission on construction but that it would cover somebody who was sentenced on the specific basis of a finding that that matter had been established beyond reasonable doubt and that has been, since 2014, a specific factor in sentencing under the Crimes Act for the offence of murder.

One may have a situation where there is a conviction for murder and, on sentencing the prosecution satisfies the court, the sentencing judge, beyond reasonable doubt of the precise matters that are mentioned in ‑ ‑ ‑

NETTLE J:   So on that last version, which sounds the most credible, if I may say so, the “convicted and sentenced” would operate distributively – “convicted” would operate as to murder but the sentence would operate as to murder of someone known to be a policewoman.

MR HORAN:   Yes.  Sentence would operate both in relation to the nature of the sentence, the imprisonment with a non‑parole period, and as to establishing the factual matters that are referred to in the subsection.

NETTLE J:   “Convicted and sentenced” would be different to that extent in that third possibility that you proffer.

MR HORAN:   It departs from our primary submission which is that to be convicted of an offence of this description those matters must be elements of the offence which are established by the conviction.  The conviction establishes that the jury has made the necessary findings of fact that support the establishment of that element honoured to the criminal standard at the time of the trial.  But, as an alternative, if it is seen as necessary to give some broader operation to the provision then it may be that it picks up cases in which there has been a specific finding made on sentencing by the sentencing court.

EDELMAN J:   Is that as an aggravating factor?

MR HORAN:   As an aggravating factor.  The provision in relation to murder is in section 3(2)(a) of the Crimes Act.  I think there is a similar section, section 10AA of the Sentencing Act, which applies to other offences. The language that is used in section 74AAA(1) appears to be borrowed with one eye on the model provided by those sections in terms of language.

Having said that, our primary submission is that one must be both convicted and sentenced of all the requisite matters.  It may be that the section has little, if any, operation in relation to past convictions for murder, including the conviction of the plaintiff.  If that is the case on the ordinary meaning of the language then the Court should uphold that meaning. 

We say that, for other reasons that I will come to, to adopt the reading that the State gives to the provision is a strange construction that does not really fit with the language of the section and it involves doing quite a bit of work to read into the section additional words so as to confer on the Board the function of inquiring into not – can take the conviction and the sentence as one element and then can go on and ask a separate factual question as to the mental state of the prisoner at the time of the offence or in connection with that offence.

GAGELER J:   Could you give that section reference again please?

MR HORAN:   I think it is section 3(2)(a) of the Crimes Act, which is tab 9 in volume 2 of the authorities.  The Sentencing Act provision is section 10AA.  Although it is a section which has a broader scope of operation because it applies to emergency workers, one of the categories of emergency worker is a police officer and there is a close ‑ ‑ ‑

KIEFEL CJ:   Is that a definition section, Mr Horan?

MR HORAN:   I think it is defined in section 10AA of the Sentencing Act, the definitions of which are adopted for the purposes of section 3 of the Crimes Act.  “Emergency worker” is defined in section 10AA(8) and it includes a police officer within the meaning of the Victoria Police Act.  It also extends more broadly to ambulance workers and others, fire officers.

What may happen, since these provisions were introduced in 2014, is that in the standard sentence for murder is increased from 25 years to 30 years if the Court, in determining the sentence, is satisfied of certain matters. 

The thing to note about this section is it must be the sentencing court which forms that state of satisfaction.  It must do so on the basis that the prosecution in the criminal matter has proved those matters beyond reasonable doubt and the overlap is, in essence, the second limb that, at the time of carrying out the conduct, the accused knew or was reckless as to whether the person murdered was an emergency worker, which encompasses police officer.

KIEFEL CJ:   Could I just take you back to the definition.  Do we have the definition of “police custody officer” within the meaning of the Victoria Police Act?

MR HORAN:   I do not think that is before the Court.

KIEFEL CJ:   It is just that the description of “custody officer” suggests something more limited than a police officer more generally.

MR HORAN:   I think the emergency worker is a police officer or a protective services officer and then police officer is – I do not have the Victoria Police Act here.

KIEFEL CJ:   Perhaps we can look at that later.

MR HORAN:   If your Honour is looking at the definition custodial officer ‑ ‑ ‑

KIEFEL CJ:   Yes, that is right.

MR HORAN:   I think that may be incorporated ‑ ‑ ‑

KIEFEL CJ:   So you are looking at emergency worker.

MR HORAN:   Emergency worker.

KIEFEL CJ:   I see.

MR HORAN:   Now, I emphasise that it is not our primary submission that the section would apply to and pick up those findings, but it would certainly be one way of giving operation to the section.

GORDON J:   But it makes the contention that there is no offence.

MR HORAN:   Yes, and that it is unlikely that would be an offence in the future but the Court has to construe the language that is there. 

GORDON J:   Does it mean though that in relation to somebody who has been sentenced, taking into account section 3(2)(a) as well as the Sentencing Act, that they would now be caught by 74 – potentially caught by 74AAA.

MR HORAN:   Well, that would be the consequence of that construction, that if the conviction and sentence was on that basis.  It would also avoid the consequences which I will come to in a moment which we say are unlikely and inconvenient, that the Board would not need to conduct its own inquiry into these potentially contestable matters, it would be done contemporaneously with the trial process.

It would be done to the criminal standard and the Board would simply have to look at the conviction and identify the relevant finding which is made for sentencing purpose to increasing the standard sentence applicable to the offence.  So it would give it a much more certain operation that the State suggests it has if the Board is able to embark upon an open‑ended inquiry, in many cases decades after the relevant conduct, to make findings of primary fact as to that mental state of the prisoner. 

Now the other – just to return to the submission I was making that the subsection describes a category of offence, it is also notable that the ‑ ‑ ‑

KEANE J:   Mr Horan, before you go to that, is not 74AABA(1) against you on that in the sense that it actually speaks in terms of “serving a sentence of imprisonment for an offence”, whereas 74AAA speaks of being “convicted and sentenced . . . for the murder”.  It is not speaking about conviction and sentence for an offence.  Is that contrast not quite instructive?

MR HORAN: Well, we would submit not. In substance, they are doing the same thing. It is true that there are differences in the language. There is no reference to conviction, for example, in section 74AABA and we attach great weight to the use of the word “conviction” and what it signifies, but it may also have been necessary to use the word “an offence of” in the latter section because it was listing a number of different offences, whereas those words would have perhaps been surplus in section 74AAA which only applies to the murder. But our submission remains that one must be convicted – one has to insert “of” – convicted and sentenced for, which involves being convicted of:

the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer ‑

NETTLE J:   But even now there is no offence of which that is an element.

MR HORAN:   I think that is correct, your Honour.  There is nothing to prevent the Parliament from enacting a specific offence with those elements and attaching to it a different penalty.  What it has chosen to do instead is to create an aggravating factor on sentencing.

NETTLE J:   Am I right in saying that even now there is no provision comparable to section 10AA of the Sentencing Act which specifically provides for sentencing in such circumstances?  That is to say, in the case of murder of a policeman, that there is a special provision limiting non‑parole or some such thing?

MR HORAN:   No, there is no – the only section in relation to sentencing is the increase in the standard sentence.  There is no specific provision dealing with the fixing of a non‑parole period, although one would expect that the increase in the standard sentence would have a corresponding effect on the tariff for the non‑parole period.  But there is no provision which precludes a non‑parole period from being set.

Now, I was going to refer to the amending Act which brought in these sections and the section at the outset which identifies the purpose of the amendments.  The Act was the Justice Legislation Amendment (Parole Reform and Other Matters) Act 2016 and, although perhaps great weight cannot be placed on this reference alone, section 1 sets out the purposes of the Act which, relevantly, in subparagraph (a)(i) is:

(a)      to amend the Corrections Act 1986—

(i)in relation to conditions for the making of a parole order in relation to a prisoner convicted and sentenced –

EDELMAN J:   Sorry, which tab is this?

MR HORAN:  It is tab 12 in volume 2.  The identified purpose refers to a prisoner convicted and sentenced for the murder of a police officer.  So the Parliament has treated as a shorthand the effect of subsection (1) as relating to the murder of a police officer and we say that that, albeit weak, provides some support for my submission that the section is directed to a category of offence rather than the circumstances in which an offence was committed.

GAGELER J:   And when we get to section 32 of the Charter, would you say that that is the purpose?

MR HORAN:   Yes.  There are some references in the explanatory memorandum which also refer to a category of crime.  I am hesitant to place any weight on those because, as I submitted at the outset, we place primary importance on the text of the legislation and I do not want to be seen to be picking and choosing and relying upon selected extracts from the extrinsic materials.  But we do say that for the purposes of identifying whether the purpose of the Act can be achieved in a way that is compatible with human rights, then the purpose is identified in part in section 1 of the amending Act.

NETTLE J:   This amending Act would have no application until then unless there is created an offence of murdering a police officer.

MR HORAN:   On our primary submission, that is correct.

KEANE J:   Do you submit that we should understand it as providing for the event that that may happen rather than making provision for what is to happen now?

MR HORAN:   We say the language of the Act is ‑ ‑ ‑

KEANE J:   Contingent.

MR HORAN:   ‑ ‑ ‑ is open to that construction.

KEANE J:   The language of the Act is contingent.

MR HORAN:   On our secondary alternative submission it does have an operation in relation to circumstances where there has been a finding on sentencing to that effect.  Apart from that, it would foreshadow the potential creation of an offence of murder of a police officer, that is, knowing, intentional or reckless murder of a police officer.

EDELMAN J:   Your secondary submission is not entirely a distributive reading, though, is it, because sentencing has to be consistent with the conviction. 

MR HORAN:   Yes.  The two, as your Honour recently observed, constraints in sentencing are that findings on sentencing must be consistent with the verdict but they also must be, at least where adverse, made beyond reasonable doubt.  In that context, it is consistent with the court, whether the jury or the sentencing court, establishing the requisite matters at the time of the trial and to a criminal standard based on the record of the trial and not some freestanding administrative inquiry at a much later date.

NETTLE J:   It is enough for you to succeed that Justice Vincent did not find beyond reasonable doubt that the prisoner knew or was reckless as to whether the victim was a police officer.

MR HORAN:   Yes, that is correct.

NETTLE J:   That is all you need?

MR HORAN:   Yes.  On our principal submission, one does not even need to go that far because one would simply look at the indictment and identify the issues that were raised in trying the offence of murder of the deceased but if one can go further and look at findings on sentencing there is no such finding that would, in terms, meet the requirements of the subsection.

NETTLE J:   That would have the advantage, at least, that this legislation would operate in the present rather than in the contingent future.

MR HORAN: Yes. It would give some scope for reference to reasons for sentence, although we say that would not be done under subsection (3). It would simply be done, in effect, by the word – inclusion of the words “and sentenced” in subsection (1). The operation of subsection (3), as we have pointed out in written submissions, can still have a substantive effect because, of course, the reasons for sentence can be relevant to the more general criteria of which the Board must be satisfied when making a parole order both under section 74AAA and otherwise.

So, the justification for the parole order, the paramount consideration of safety of the community, are two examples of matters to which, in considering an application, the Parole Board may have regard to reasons for sentence.  But we say that has no – it is not simply a piece of probative material to which the Board may look at under subsection (1).

Now, as we have submitted in writing, we say the language of subsection (1) cannot be carved up or disaggregated into separate components, as the defendant’s construction seeks to do, the two components being, firstly, the fact of the conviction and sentence for the murder of a person and then, secondly and separately, the fact that the prisoner knew the person was:

or was reckless as to whether the person was, a police officer –

and with that second matter being determined as a matter of fact by the Board separate to the fact of the prisoner’s conviction.  That is simply not what the section says and it involves reading words into the provision or giving it a strained interpretation.  The other indirect support for the plaintiff’s construction in that regard, we say ‑ ‑ ‑

EDELMAN J:   The words that would be read in, you say, would be after the word “who”.  It would be something to the effect of “to the Board’s satisfaction” or “in the Board’s opinion”?

MR HORAN:   Yes.  That may be effectively what is required although that does raise a separate related issue of whether the inquiry would be one of jurisdictional fact or one entrusted to the Board for its satisfaction, which might be relevant, for example, on judicial review of a decision by the Board to rely on this section.  But it certainly would, at least, read into the section:  “the murder of a person, being a person who the prisoner knew was” or perhaps “where the prisoner knew the person was, or was reckless” – one would have to change the grammatical structure and the wording of the provision in some way to give effect to the defendant’s construction.  One needs only to look at paragraph 50 of the defendant’s submissions to see the redrafting of the provision which is engaged in.

So, on its natural reading we say it is a composite whole and we say that when one looks at the transitional provision which was belatedly inserted into the Act at the end of last year, section 127A, which is at page 349 of the reprint, we say that the first paragraph of that transitional in fact supports ‑ ‑ ‑

KIEFEL CJ: Just before you get to the transitional provision, in relation to section 74AAA(1) is it your submission that the defendant requires that there be an implication of terms to the effect perhaps, after the words “for the murder of a person who”, insert “the Board finds”?

MR HORAN:   Yes, that would also be ‑ ‑ ‑

KIEFEL CJ:   Because what is missing, on your submission, from subsection (1) is a clear indication that it is the Board that is to make the finding.

MR HORAN:   That is correct.  It could have been drafted even more clearly to say in respect of a prisoner where the Board is satisfied or the Board finds that (a) the prisoner was convicted and sentenced for the offence of murder and (b), the prisoner knew the person was, et cetera.

GORDON J:   The interesting thing about that is that it also addresses the question of the standard.  On your third alternative construction then of course the finding by the sentencing judge would be beyond reasonable doubt, whereas here it would be a lesser standard.

MR HORAN:   Yes.  We say that is a very significant consequence because, as I will come to shortly, not only would, on Victoria’s submission, this be an administrative inquiry on the balance of probabilities, it would be done without any requirement to observe natural justice and without any compliance with the rules of evidence in circumstances where the rules of evidence specifically provide for the inadmissibility of findings of courts in previous proceedings to prove those facts.

GAGELER J:   Is there a provision that excludes natural justice?

MR HORAN:   It is section 69(2):

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

Section 71 provides:

In performing its powers, functions and duties, the Board is not bound by the rules of evidence . . . and may inform itself on any matter as it sees fit.

One could effectively have a Star Chamber type inquiry behind closed doors which is presented as a fait accompli to a prisoner that this section applies.  On the State’s construction, that would be very difficult to review on judicial review because it would be entrusted to the satisfaction of the Board, and the Board could simply say it was open to the Board on the basis of these remarks made on sentencing to find that that element was made out.

We make the submission that in fact it would not be a matter for the satisfaction of the Board.  One could seek de novo review of those matters before a court, but that would be something with which the prisoner would potentially be met on judicial review, that this was something that was effectively entrusted to the Board in circumstances where the prisoner has not really had an opportunity to meet the case, however thin it might be.

KEANE J: Section 74AAA(1) contemplates that the prisoner basically acknowledges these necessary facts in the application itself – “the prisoner”:

unless an application for the parole order is made to the Board by or on behalf of the prisoner.

“The prisoner” is presumably the prisoner described earlier.

MR HORAN: I think the difficulty is twofold. One is that, but for the Commissioner’s requirement, a prisoner would not need to make an application at all to enliven the jurisdiction of the Board to grant parole. Before section 74AAA came in, there was an administrative requirement made that the Board would not consider parole unless on the instigation of the prisoner by application. I think that requirement was one of the things that flowed from the Callinan review into the parole system.

The difficulty is that, having made that application, the amendments introduced last year, another thing that they do is that they deem an application made prior to the commencement of this section to be an application under section 74AAA.

So when the plaintiff applied for parole on 3 October 2016, he was not applying pursuant to this section.  So he has never made an application under this section and in essence there would be no point in him making any such application until such time as he has any chance of showing that he was in imminent danger of dying or was seriously incapacitated.

His application was made under the statute as it was in force at that time.  It cannot be taken to involve any concessions or admissions in relation to the matters that are set out in this subsequently introduced subsection.  So in answer to your Honour’s question, there is nothing in the application by which the prisoner can be taken to have accepted the application of the section. 

The problem is that, on making an application which the prisoner asserts is outside this section, he will be met with a refusal by the Board saying either that he is required to make an application specifically under this section and has not or that they treat his application as being made under this section and refuse it because he does not satisfy the conditions.

So there is really no way in which ‑ his case is that he is not governed by the matters in this section but if the Board asserts to the contrary that will shut the gate or close the door against any prospect of parole.  We say before that can be done these matters should be established and construing this provision sensibly and in a manner that is compatible with human rights they should be established by the conviction or, if not, then by the sentence according to the criminal standard and not by a subsequent administrative inquiry.

What I was about to briefly point out in relation to the support for the plaintiff’s reading in the transitional provision, accepting that this was not introduced until roughly 12 months after the initial provision, the provision is then described in section 127A, in paragraph (a), the amendments which comprise section 74AAA:

apply to a prisoner convicted and sentenced as mentioned in section 74AAA(1).

That places entire weight on the conviction and sentence as the focal point of the operation of the provision and does not contemplate any separate inquiry by the Board into any additional factual matters.  So we say that that corroborates and confirms the legislative intention, which is that one looks to the conviction and sentence to ascertain whether this section has application to a prisoner.

KIEFEL CJ:   Depending on what the words “as mentioned” actually convey.

MR HORAN:   That is true but there is no indication that they encompass “convicted and sentenced” as mentioned where the Board makes separate findings of fact - separate to the conviction of sentence.  As I say, it is not a strong or certainly not a conclusive indication but it provides some support for the centrality of the conviction and sentence to the triggering of the restrictions. 

Now, in the present case, of course the plaintiff was convicted of murder and one must assume that the jury was satisfied beyond reasonable doubt that as a participant in the common enterprise he had the requisite intention or recklessness as to the death that was caused by the detonation of the bomb but the Crown were not required to prove, and the jury were not required to be satisfied, of any of the matters in section 74AAA(1) which are directed to a specific state of mind of knowledge or recklessness as to whether the deceased was a police officer as defined in this section.

Now, in answer to your Honour Justice Gordon’s questions, I have touched on the inconvenient or undesirable consequences of the defendant’s submission that the subsection contemplates an inquiry by the Board into the mental element or state of mind at the time of the offence and those are set out in further detail in the plaintiff’s submissions at paragraph 40 and in the reply at paragraph 6.

They include the necessity for the Board – if it is necessary for the Board to go beyond the conviction and have regard to any probative material, it will effectively be required to re‑examine the evidence from the trial together with a whole range of additional material that might potentially be before it, and at least where there has been no specific finding made by the sentencing judge in the terms of section 74AAA, but even if there is such a finding it would arguably not be conclusive or binding unless the section is on the alternative construction construed to specifically pick up that finding as the operative element.

NETTLE J:   That is your third construction.

MR HORAN: Yes. So in the present case where it was case of joint enterprise and on the Crown case, it was not established, the precise involvement of each co‑accused was not established. The mental element encompassed by the joint enterprise was not addressed, or at least was not directed to the matters set out in subsection (1) of section 74AAA.

So we say the scope of any factual inquiry conducted by the Board would need to range far beyond the conviction and sentencing remarks and examine matters which took place more than 30 years ago with consequences for the availability of evidence and the ability to challenge or test that evidence without any requirement to comply with the rules of natural justice or the rules of evidence and we have referred in passing to section 91 of the Evidence Act which would otherwise apply and would render findings of fact made in an Australian proceeding inadmissible as evidence of the facts.

That is subject to a qualification in section 178 of the Evidence Act which specifically provides for proof of the fact of conviction or the fact of sentencing to punishment but it does not provide for proof of the facts found by the Court on sentencing by tendering evidence of the findings that were made.

Now, the Board would not be subject to those rules so that although in a court one could not rely upon the sentencing remarks themselves as evidence of the facts, the Board would be able to do so.

KEANE J:   There is nothing surprising about that in itself, though, is there, because we are not concerned about the trial processes of conviction and sentence, we are concerned with whether an application for the privilege of parole should go forward.

MR HORAN:   That is correct, and if the Board were making findings as to the circumstances of the offence more generally to determine whether or not a parole order is justified, or whether there is a risk to the community, we do not say that the Board could not look at any of that material for that purpose, but for the purpose of triggering this very severe restriction on the prospect of release we say that it is relevant that, on the State’s construction, this would be done long after the trial to a different standard of proof and we say that that is undesirable that a prisoner should be – should have the prospect of parole removed in substance on the basis of the findings of such a body.

EDELMAN J:   On your alternative submission about the remarks on sentencing alone being necessary to establish whether or not the prisoner is a person who had intended or was reckless as to whether or not the person killed was a police officer, is that something that could be ascertained, not just by express findings in the sentencing remarks, but also by implied findings in the sentencing remarks?

MR HORAN:   Assuming that the rules of evidence do not apply, then the Board can look at any material and if it is probative of the relevant matters then it can draw such inferences as are open from that material.

EDELMAN J:   You would accept on your alternative submission that the Board could do that impliedly as well as finding any express conclusion?

MR HORAN:   It would need to be a very clear and necessary implication to infer that there was a finding that the prosecution had satisfied beyond reasonable doubt that state of mind.

NETTLE J:   Page 94 goes pretty close to it in the sentencing remarks.

MR HORAN:   We say they do not because they are directed to far broader considerations in relation to the enterprise and ‑ ‑ ‑

NETTLE J:   I was thinking about the location selected for the bombing and the time chosen for its detonation are powerful indicators of the underlying motivation. 

MR HORAN:   Yes, but in circumstances where the motive was relevant to circumstantial evidence of participation in the enterprise ‑ ‑ ‑

NETTLE J:   The location was outside Russell Street Police Headquarters.

MR HORAN:   And next to the Magistrates Court and in a busy area of the public.  There are a lot of factors that are referred to and the – it is not part of our case here to seek to argue the application of the section to the facts, including the sentencing remarks, but we say that the ‑ ‑ ‑

NETTLE J:   I understand your submission that there is no express finding beyond reasonable doubt that he knew or was reckless as to whether the victim was a police officer, but I took you to be accepting in response to Justice Edelman’s question that it would be open to, as it were, infer from what the judge had said that he so concluded.

MR HORAN:   Well, in our submission, that would not be an open inference simply from those comments.

NETTLE J:   In this case, you would say?

MR HORAN:   In this case, and there are other comments made in relation to the indiscriminate nature of the attack and it being directed at the institutions of society and the community in far more general terms than simply being placed there with the specific state of mind that subsection (1) refers to.

BELL J:   Taking you to page 94, his Honour refers to the evidence of Paul Hetzel and to Mr Hetzel’s evidence of the plaintiff’s boast on this matter.  Was that some of the evidence that was adduced over objection of the plaintiff’s animosity towards the police?

GORDON J:   I think that is the brother, is it not, Rodney Minogue?

MR HORAN:   Yes.

GORDON J:   I do not think that is the plaintiff in this case.

BELL J:   Is that the other brother?

MR HORAN:   I think it then was:

In his submissions on your behalf, Mr Minogue –

at the bottom of the previous page, but then his Honour talks about the construction of the bomb “by you, Mr Taylor”, and I think it is referring to Mr Taylor’s boast about the construction of the bomb.  I am not familiar enough with the ‑ ‑ ‑

BELL J:   I see.

MR HORAN:   ‑ ‑ ‑ extensive record at the trial, but I think the case was that, as his Honour remarks at the second line:

the bomb was probably constructed by you, Mr Taylor.

I think that evidence ‑ ‑ ‑

BELL J:   I see.  The matter I am raising with you is that there was evidence led over objection of this plaintiff’s animosity towards the police ‑ ‑ ‑

MR HORAN:   Yes, and that became ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ and I was just wondering whether that fed into his Honour’s remarks on sentence, particularly at page 94; perhaps not.

MR HORAN:   I think the evidence on motive was summarised and discussed in more detail in relation to grounds 23(a) and (b) on appeal which the passage in the Full Court’s judgment starts at page 167 through to about page 174 and that refers to and summarises the evidence of motive.

But it was a contested issue at trial and there was evidence led as to the motive of others apart from the plaintiff or apart from the co‑offenders, the defendants, and remembering of course that this was a joint enterprise case, so it was not a case that was specifically directed at the ‑ the acts of each offender were part of a common plan and any question of intention or motive was approached in that light, which we say makes it more problematic to try to draw conclusions about the state of mind of any one of the co‑offenders, bearing in mind of course that I think one of the co‑offenders was acquitted at trial and another was acquitted on appeal.  So, the Crown case was not exactly wholly endorsed at the trial.

But, in any event, we say that it would be difficult for the Board now to embark upon an inquiry which reopens all of those matters.  It cannot stop simply at adopting the reasons for sentence and trying to fill in the gaps and draw inferences.  It must look at all of the material that was before the court in a very lengthy trial and it must look at any other material that might have emerged since.  But of course the ability of the prisoner to meet that case is compromised by the significant length of time that has passed since the events occurred.  So we say it is very unlikely that Parliament would give the Board that function when there is an available alternative which is open.

GAGELER J:   Mr Horan, can I just ask a procedural question.  If you look at the terms of the questions asked in the special case, page 85, paragraph (b) ‑ ‑ ‑

MR HORAN:   If your Honour would bear with me.  These questions reflect the pleadings in the pleaded case which at the moment is confined to the primary argument that it must be an element of the offence, which is an admitted fact between the parties that it was not an element.  It would, on the alternative construction, need to be the subject of a reformulated question:  is it capable of applying in circumstances where there was no finding on sentencing that the prosecution had established beyond reasonable doubt the relevant matters?

GAGELER J:   Have you given some attention to the terms of that question?

MR HORAN:   Yes, your Honour.

KEANE J:   Mr Horan, is it the case that the special case asserts that your client’s position is that he did not have the requisite state of mind?

MR HORAN:   I do not think it goes so far.

KEANE J:   So the alteration or the amendment of the question would not be supported by the terms of the special case?

MR HORAN:   It would need perhaps an amendment to the pleading to raise that question of the applicability in alternate ways, but neither of them is directed to the underlying facts having been made out.

KIEFEL CJ:   What steps do you propose to take then, Mr Horan?

MR HORAN:   Well, perhaps over lunch I can discuss with my learned friend and see whether we can formulate a double‑barrelled question (b) or a new question and then ‑ ‑ ‑

KIEFEL CJ:   I think the message was given to the parties that we will be adjourning at 12.30 and resuming at 2.30, so time has played into your hands.

MR HORAN:   Exactly, yes.  It gives us plenty of time.  The pleadings are perhaps of secondary importance but we could ultimately reflect that in the pleadings.  But for the purposes of the hearing today I think we could certainly, over lunch, draft an alternative question.

If I could turn briefly to the Charter, which we rely upon as supporting the plaintiff’s construction, both the first point of construction and the second point to which I will come, which deals with the temporal aspects, section 32 of the Charter, which is at tab 6 of the book of authorities, in substance provides that if there is a choice between competing constructions of section 74AAA(1), the section must be interpreted in a way that is compatible with human rights, where such a construction is available and consistent with the statutory purpose.

In the present case, our submission is that section 74AAA engages human rights under the Charter insofar as it removes any prospect of parole prior to the imminent death or serious incapacitation of the prisoner. First, we submit that would render the plaintiff’s imprisonment, what has been referred to in the jurisprudence as an “irreducible life sentence” and has been held by international courts to be inconsistent with the equivalent of section 10(b) of the Charter, which guarantees protection from cruel, inhuman or degrading treatment and, secondly, we say that the section engages section 21(7), which requires the lawfulness of detention to be capable of review and at international law that has been held to extend to a requirement that the continued detention after the expiry of a non‑parole period must be capable of review by an independent body with power to release the prisoner.

So a whole life sentence without any prospect of release other than on narrow compassionate grounds we say is in clear contravention of international human rights instruments, as picked up by the Charter of Human Rights and Responsibilities Act.

Just as an introductory point, I wanted to make submissions about the purposes of parole and the non‑parole period which the Court will be familiar with from cases such as Knight and Crumb.  Although under Australian law there has been no differentiation between the purposes served by a sentence of imprisonment before the non‑parole period as opposed to after, the sentence of imprisonment serves the purposes of punishment throughout but it is punishment directed towards reformation, to use the words from Power v The Queen 131 CLR at 628 to 629. The purpose of the non‑parole period or minimum term, which has been repeatedly endorsed by the Court, coming from the passage in that case, is:

to provide for the mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.

In subsequent cases, including Bugmy v The Queen and Shrestha, members of this Court have emphasised that, by providing for that mitigation of punishment, the non‑parole period provides a prisoner a basis for hope of earlier release and, in turn, an incentive for rehabilitation.  As Justices Deane, Dawson and Toohey said in Shrestha, 173 CLR at 69:

In the harsh context of a prison environment, the potential advantages ‑ in terms of hope, self‑esteem, incentive for reform and rehabilitation ‑ which eligibility for release on parole offers a prisoner in an Australian gaol should not be underestimated.

Now, that brings me to the case in the Grand Chamber of the European Court of Human Rights in Vinter v United Kingdom which is at tab 47.  This case is very important in establishing, as a matter of international law, that whole life tariffs are incompatible with relevant human rights which are the equivalent of section 10(b) of the Charter. 

In this case the applicants had been convicted of murder and given mandatory life sentences and then they were each given what is described as whole life tariffs which were, in essence, the equivalent of life with no parole or no minimum term and the court concluded that this was a violation of Article 3 of the European Convention on Human Rights.  The most relevant passage can be found at paragraphs 110 to 114 and without – I would invite the Court to look at the entirety of that passage, but the court begins at paragraph 110 by stating that:

There are a number of reasons why, for a life sentence to remain compatible with art 3, there must be both a prospect of release and a possibility of review.

Paragraph 111 talks about the penological grounds for detention being the objects of “punishment, deterrence, public protection and rehabilitation” and notes that they are inherently variable and may shift over time, so that that requires that a review of the justification for continued detention be conducted so that those shifts can be properly evaluated.  Paragraph 112, the court notes that – the chamber notes that:

Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence - 

After observing that that in effect renders the sentence potentially disproportionate, notes at paragraph 114:

there is also now clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.

The conclusion is then stated at paragraph 119 where the Grand Chamber concludes that:

in the context of a life sentence, art 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.

Now, that echoes the accepted jurisprudence in this Court as to the principles applicable to the fixing of a minimum term which is directed towards the purposes of rehabilitation and providing some hope for prisoners to – of release at an appropriate time.

Before leaving this decision, I refer also to the earlier extract that the chamber gives, at page 54 on page 2590 of the book of authorities, from Lord Justice Laws, in a case of R (on the application of Wellington) [2008] 3 All ER 248. In paragraph 39, his Lordship observes, at about point f on the page within the indented quote:

Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death.  He can never atone for his offence.  However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath.  Like the death sentence the whole life tariff is lex talionis.  But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis) is a poor guarantee of proportionate punishment, for the whole life tariff is arbitrary:  it may be measured in days or decades according to how long the prisoner has to live. 

In essence, this law removes all hope of release on parole and removes any further incentive for further rehabilitation of the prisoner within the prison system. 

It is also relevant to note that the domestic laws at issue in Vinter included a possibility of release on compassionate grounds which echo the criteria which are set by section 74AAA. They appear at paragraph 42 on page 2585. They essentially provided a policy for release if the prisoner was suffering from a terminal illness and death was to occur very shortly or is bedridden or similarly incapacitated and there was minimal risk of reoffending. Essentially, the fact that the sentence was reducible in those circumstances was not regarded for the purposes of international law as preventing the whole life tariff from being an irreducible life sentence, which was contrary to Article 3.

The only other point I would make in passing on the laws at issue in this case is that at paragraph 39 there is a discussion of the amendments that were brought in under the Criminal Justice Act 2003.  It is worth noting that the schedule for determination of minimum term under that law encompassed at the bottom of that page taking into account in determining the seriousness of the offence a range of different things, one of which was the murder of a police officer or prison officer in the course of his duty.  That was categorised as being in the second highest category of seriousness. 

So there is a range of circumstances which were regarded as exceptionally high, where the appropriate starting point was a whole life order, and then below that is a range of circumstances which were particularly high seriousness, and it was into that category that the murder of a police officer fell.  But that would be a matter which, like under section 3(2)(a) of the Crimes Act, would arise in the course of sentencing in determining whether or not to fix a whole life tariff or a minimum term.

Now, against that background, we say that the section should be construed in a way which is the least incompatible with human rights which are engaged. The incompatibility of section 74AAA was frankly acknowledged by the Minister in the statement of compatibility which appears at tab 49 in volume 6. There, the Minister at the bottom of page 2638 and on to the top of 2639 seems to address the human rights that are limited by the Bill and in relation to cruel, inhuman and degrading treatment notes that the amendments:

may be considered to constitute cruel, inhuman or degrading treatment, or inhumane treatment when deprived of liberty, as the reforms will have the effect of removing the prospect of release of certain offenders and diminishing their possibility of rehabilitation.

Then there is a note ‑ acknowledgement in the following paragraph of the interpretation of those rights as being:

limited in circumstances where an offender serving a life sentence is given no real prospect of release, which may be contrary to human dignity and amount to inhuman and degrading treatment.

Then, across on the second column there is an acknowledgement that the nature of the limitation is severe and is aggravated, in particular, by:

retrospective effect of the limitation –

And finally, the third point, is the paragraph dealing with an acceptance:

that there may be alternative less restrictive means reasonably available to achieve the purpose, for example through parole conditions which facilitate an increased possibility of release.  In this regard, it may be argued that clause 3 is incompatible with the ss10(b) and 22(1) of the charter, in light of the particularly severe retrospective effect the limitation will have on certain individual offenders and the potential availability of less restrictive alternative measures.

Now, the important thing to note about this is that despite that acknowledgement – correct acknowledgement, that these amendments were in direct violation of international law and of the Charter, there was no override declaration made by the Parliament pursuant to section 31 of the Charter.  So, the provisions of the Charter, including section 32, the interpretative provision, are not disengaged.  This is in direct contrast to the section 74AA which was considered by this Court in Knight which did contain specific override provisions.

Now, whatever the reason for that difference, it is the intention of the Parliament ultimately that the Court has to ascertain and not the opinions expressed by the Minister in the statement of compatibility.  But the statement of compatibility confirms the incompatibility of this Bill and the amendments with human rights but it does not – it is not sufficient to indicate Parliament’s intention to proceed to derogate from those rights and impair them to the maximum possible extent.

So, provided that an interpretation is available which is consistent with the purpose of the section and with the language of the section, the Court should prefer that as reflecting Parliament’s intention in accordance with section 32 of the Charter.

GAGELER J:   Mr Horan, you may be going to address section 32 further and I do not want to ask you the question ‑ ‑ ‑

MR HORAN:   No, I was not going to.

GAGELER J:   Well, really what I wanted to ask you is this. What you are asking us to do is to read section 74AAA(1) as having a narrow field of operation, so it could be read as applying to a wide class of prisoners or a narrow class of prisoners. You want to have us read it as applying to a narrow class of prisoners. In its application to that narrow class of prisoners it would, on your submission, violate the human rights in question. So, it is not a construction that mitigates the extent of the intrusion onto the human rights of the people to whom the provision applies. It is a reading that results in the violation of human rights occurring in respect of a narrower class of persons. Now, sorry for that very long preamble ‑ ‑ ‑

MR HORAN:   No, but we say that ‑ ‑ ‑

GAGELER J:   ‑ ‑ ‑ but do you say that the provision can work that way?

MR HORAN:   Yes, and we say that the interpretative principle in section 32 can work in both ways, and it really reflects the common law presumption to give a narrow reading to provisions which are restrictive of rights and liberties, especially in relation to imprisonment or detention.  But there are two consequences of the narrow reading of the class to whom it applies.  One is that it will infringe the rights of less persons, so it will be in that sense less restrictive of human rights.

But the second aspect is that it will provide a more justifiable link between the nature of the class and the restriction imposed because it will apply to prisoners who have been convicted or sentenced on the basis of an establishment beyond reasonable doubt of the requisite state of mind, and that being done at the time of the trial to the criminal standard rather than allowing a very broad inquiry to a different standard on different material to extend the operation of this provision to persons who have not had the opportunity in the trial of contesting those elements.

So, in other words, the purpose of the provision will be enhanced if it applies in a more true sense to persons convicted of the intentional murder of a police officer rather than allowing it to apply in a broad sense to person who the Board is satisfied had the requisite state of mind.

GAGELER J:   Is there any case law that we should take into account on the use of section 32 in the way ‑ ‑ ‑

MR HORAN:   In that way – I am not aware of any.  We can, perhaps again, try and make some inquiries over lunch.  I think, obviously, the main cases are in relation to the role of section 32, Momcilovic, and the Slaveski Case, which has been extracted in the authorities.  But I think in most cases it would be relied upon in the former way to narrow the extent of a restriction or derogation from a relevant human right rather than narrowing the scope of persons to whom the full extent of the restriction applies.

KIEFEL CJ:   Solicitor for Queensland.

MR DUNNING:   May it please the Court.  As your Honours will have appreciated from our written submissions, we have dealt only with the question of retrospectivity or the lack of it.  I do not wish to speak beyond what we have said in our written submissions in that regard and on the topic of the rule of law.

In relation, Chief Justice, to a question you raised a little earlier about does the constitutional question arise, at paragraph 15 in our written submissions we made the submission that if the plaintiff’s point was simply about a lack of prospectivity then the constitutional question did not arise because, upon the application of orthodox and settled law, the application would fail.

If we have understood our learned friend for the plaintiff’s submissions correctly, particularly those that appear at paragraph 15 of their reply submissions, the submission is made that no, it is not simply limited to a complaint about its retrospective operation.  It is rather that it seems to have interfered with this legal process which was engaged at the time of the passing of the legislation.  But ultimately, if your Honours form the view that, in truth, the submissions amount to no more than prospectivity then we would submit you would not get there.

Your Honours, in relation to the rule of law question can we make very briefly these submissions.  With respect, we submit that the difficulty with the way the plaintiff frames its case is that it does not offer an exposition of what in fact the rule of law is.  Rather, it offers some exemplifications at a rather abstracted level as to what the rule of law will sometimes entail. 

Before the rule of law in this case, as it is urged to be, to be a proper basis to limit legislative power one needs to talk about what it is rather than what it is not or some illustrations of it.  We have endeavoured in that regard to offer – and your Honours will see it is set out in paragraph 2 of our outline this afternoon and can we take your Honours, please, only to three references to make good that submission.  Firstly, can we take your Honours, please, to the plurality in Graham, volume 4, tab 26, at page 1585.

GORDON J:   What paragraph number, please.

MR DUNNING:   Paragraphs [39] and [40], Justice Gordon.

GORDON J:   Thank you.

MR DUNNING:   I appreciate your Honours will be familiar with this passage.  There are only three short passages we would draw critical attention to.  In paragraph [39] in the second line, after their Honours had identified that something had been correctly said:

all power of government is limited by law.

Then your Honours went on to discuss that in respect of the limits upon judicial power and then in paragraph [40] the constitutional history that led to that.  At about halfway through paragraph [40]:

The precept has since come to be associated in the particular context of the Australian Constitution with the decision of this Court in Australian Communist Party –

and then a reference to Justice Dixon. Then, finally, about two‑thirds of the way through that paragraph, Justice Dixon’s oft‑cited quote about the rule of law being an assumption of the Constitution.

Can we then take your Honours, please, to two extrajudicial writings of two former Chief Justices of this Court – firstly, Chief Justice French, volume 6, tab 52 of the joint book, in a paper that his Honour presented to the Singapore Academy on the rule of law.  May we ask your Honours, please, to go to page 2671 of that paper and, in particular, about halfway down the page where Chief Justice French, having referred to a decision of the Court of Appeal in Singapore, says:

So too in Australia, with written Commonwealth and State Constitutions, there is no such thing as unlimited official power, be it legislative, executive or judicial.

I will not read out to your Honours what is said in the rest of that page, but his Honour then illustrates that point in respect of all three branches of government.  Then, finally, may we take your Honours, please, to a lecture given by Chief Justice Gleeson, which your Honours will find in volume 6, tab 53 of the joint bundle.  May we first of all take your Honours, please, to page 2682 at about lines 27 to 31, where his Honour says:

As an idea about government, the essence of the rule of law is that all authority is subject to, and constrained by, law.

Then moving over a sentence:

The contrasting concepts are legitimacy and arbitrariness.  The word “legitimacy” implies an external legal rule or principle by reference to which authority is constituted, identified, and controlled.

Then, your Honours, at page 2686 at about line 5, in a passage that starts midway through the paragraph - his Honour had been speaking, to give your Honours the context of it, of the decision in the Communist Party Case and this question of deference.  His Honour says:

And it would be inconsistent with the rule of law.  Whether a law was within power was for the Court to decide.  If a law were within power, then the question whether there was a need for the law was entirely a question for Parliament, and was no concern of the Court.

His Honour expands on that proposition to the end of that paragraph. That leads us to make the submission that at least in the Australian context the rule of law is at its core that each of the relevant branches of government must observe the limits of its power which, in effect, means that in a situation where it be a written Constitution, it is that Constitution that both distributes the power of government and sets the limits of the various organs of government with which it is concerned.

Turning then to the submission that is made that the rule of law is offended here, in our respectful submission it is not when one tests it this way.  Dr Minogue was tried, convicted and sentenced in accordance with the judicial function.  At that point, the judicial function came to an end.  The administration of that penalty passed to the Executive in an unremarkable exercise of, in fact, the rule of law for the Executive to administer that sentence that had been imposed in accordance with the laws that the Parliament had passed in relation to the administration of sentence from time to time.  That is all that has happened here. 

Indeed, in our respectful submission, the rule of law would be confounded were the plaintiff’s submission to be accepted because it would, in effect, allow the recalling from the Executive and in turn the legislature, the administration of the punishment that had been effected – imposed.  Your Honours, unless we can assist you any further they are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  Solicitor for Western Australia. 

MR QUINLAN:   May it please your Honours.  Your Honours will have our written submissions and our outline of oral argument.  I can be even briefer than the outline of oral argument would suggest.  Can we just make a submission in relation to what would be – what we see are the two aspects of the constitutional argument put by the plaintiff.  The first is that which is clarified at the plaintiff’s submissions in reply at 15 which is what we have described as a narrower reliance on an aspect of prospectivity, that is, what the plaintiff has identified as interfering with the legal consequences that have already flowed.

We make the point that has been made by my learned friend, the solicitor for the defendant, that of course the only matter that has arisen as a result of the plaintiff having engaged with the Board is the commencement of a parole application process.  So, ultimately, what he calls in aid is to seek to invoke an expectation that the law to be applied to his application will remain unaltered during the pendency of it.

We make the point in the context of the constitutional argument that we only get to this point of course if the court has concluded, contrary to the plaintiff’s first submissions, that as matter of proper construction, the will of Parliament having been expressed through section 74AAA and section 127A is that section 74AAA applies to the plaintiff’s parole application.

We say in that respect that the rule of law, far from denying that effect, in its most basic sense requires the Board to apply section 74AAA, that is, in its most basic sense, the rule of law requires the Board to apply the Corrections Act properly construed as it is from time to time. 

That picks up the reference that my learned friend, the Solicitor for Victoria, took your Honours to in Attorney‑General (Qld) v Australian Industrial Relational Commission that the ultimate duty is to apply the law as it is from time to time otherwise is would be, with respect, the rule of the last but one more or the rule of the law that was and no longer is.

Then in relation to the second aspect, the question of the intersection with the judicial determination, we simply pick up the fact that the factum relied upon in the present case by the legislator, that is the circumstance of the state of mind of the prisoner, is not intersecting in any way with the conviction or sentence for murder, but as with the position in Crump, the factor will have something to do with the murder conviction or the sentence as it did in Baker v The Queen and Crump, where the factors selected were non‑release recommendations that had previously had no effect. 

So that while there were aspects of the judicial determination that were relevant to the new factum they nevertheless did not intersect with the essential exercise of judicial power.  Unless there is anything further, those are our only submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Mr Wait, for the Attorney for South Australia. 

MR WAIT:   If the Court pleases, I am content to rely on the written outline that has been filed - the written submission I should say.

KIEFEL CJ:   Thank you. 

MR WAIT:   Thank you.

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

MR HORAN:   Just briefly, your Honours.  I should respond on the manner in which we have approached question (bb) in response to your Honour Justice Gageler’s questions.  We regard that question as being directed to findings made on sentencing by the relevant sentencing court or judge, whether express or implied which would, in accordance with ordinary sentencing principles, generally encompass the criminal standard insofar as the findings are adverse. 

The sentencing remarks are not mere evidence of the factum in section 74AAA(1) but on this question would be the factum, that factum would be that the plaintiff was sentenced on the basis of such findings so that the findings would not be relied upon as probative material of the facts. They would be evidence of the fact that those findings were made.

We say that that was ‑ the question, as I attempted to indicate earlier is framed as a threshold question of construction.  The plaintiff joined issue on the application of that alternative construction on the pleadings and we say that if this is the proper construction that it is not established from the sentencing remarks in this case.

EDELMAN J:   That would be for the Parole Board to determine.

MR HORAN:   That would be a matter for the Parole Board.  I was about to say that it does not directly form part of the special case and it need not be embarked upon in answering the question of construction.  I would very briefly observe in relation to my learned friend’s submissions on the sentencing remarks that without limitation to what might be said in another place on behalf of the plaintiff, the reference at special case book 96 to violent actions against “them”, I would submit that “them” in that sentence refers to the community referred to earlier in that sentence rather than being actions directed against them being members of the police force. 

GORDON J:   They are the sentencing remarks or the Court of Appeal?

MR HORAN:   That was in the sentencing remarks.  In relation to the Court of Appeal we would submit that on this construction the findings of an appeal court would not form part of the basis on which the prisoner was sentenced, unless perhaps it involved a re‑exercise of the sentencing discretion. 

Insofar as the reliance is placed – again, this is probably a question for another day in another place – upon the reasons for judgment of the Full Court, it should be noted that, insofar as there was an appeal against sentence by the plaintiff, that was dealt with at special case book 217 to 218.  So it is really only that very limited part of the Full Court’s reasons which deals with the appeal against sentence. 

In respect of the plaintiff, it was only directed to the length of the minimum term.  There was no appeal against the imposition of a life sentence, but only in relation to the harshness of what was submitted to be the extraordinary length of the minimum term that was set as a non‑parole period.

We say that, whatever else might be said, the sentence was not affirmed as a discretionary exercise by the Full Court.  To the extent that there is any affirmation by the Full Court of the basis of the sentence, it is purely in that passage of its reasons for judgment at special case book 217 to 218.

The issue about whether the constitutional question arises if question (bb) were to be answered yes, that is, the section is incapable of applying unless the plaintiff was sentence on the basis of that mental state, we say that the constitutional question may still arise because, on that construction, it would remain open that the section would be held to apply to him.

That is not a question that is presented for decision by question (bb), but if there is ultimately, on its proper construction, an application of section 74AAA to the plaintiff that will attract the arguments that have been presented from the outset by the plaintiff in relation to the operation of that law in interfering with the ongoing processes of the Board in relation to the consideration of his parole.

So, however one gets to the point at which the section is held to apply to the facts of this case, it is only if it does not apply or is incapable of applying that the constitutional question would be unnecessary to answer.  But it may be that ultimately it is unnecessary to answer if ultimately a finding is made that the plaintiff was not sentenced on that basis.  I think that answers your Honour’s question, but perhaps does not give a definitive yes or no.  The only other – I think my answer is yes, it still needs to be determined, even if the question is answered yes in accordance with the plaintiff’s submissions.

The two final points I would make are firstly in relation to the alternative construction which is posed by the question now numbered (ba), I should draw your Honours’ attention to the fact that there is passing reference in the extrinsic material to the Sentencing Act provisions as a model for the drafting of section 74AAA and the relevant reference is in the second reading speech at tab 49 in volume 6. At page 2641 the Minister notes that:

The bill draws on section 10AA of the Sentencing Act –

which is in turn incorporated into section 3(2)(a) of the Crimes Act.  So there was clearly some borrowing although I think, as my learned friend pointed out, there is not a complete coincidence in the scope of application.

The final point I would make is in relation to the defendant’s primary submission that if the submission that the section poses an additional separate factum relating to the plaintiff’s state of mind, and in that regard the defendant seeks to invoke, among other things, the plaintiff’s own parole application and submission as new evidence, which might be relevant to that task, the final point I would make is that the dangers inherent in that are illustrated, amongst other things, by not only the fact that as already submitted natural justice does not apply nor the rules of evidence, but the Board is given quite extensive powers to compel the attendance of witnesses in the production of documents and answering of questions. 

The sections are section 71A and following and then offence provisions in section 71G and 71I. So it is subject to having a reasonable excuse. It would potentially, on the defendant’s construction, be possible for the Board to give a notice to the prisoner compelling him or her to attend and give evidence on the matters referred to in section 74AAA(1) and in that regard, unless the consequences of section 74AAA are regarded as a punishment or penalty, the prisoner may not be able to rely upon a privilege against self‑incrimination or exposure to a penalty in answering questions about his or her mental state in connection with the offending.

We say that this again highlights the unlikelihood, the real Star Chamber quality which is suggested would exist if the Board were able to inquire into such matters as a new and separate inquiry, rather than relying on the matters that were established by the conviction or by the conviction and sentence.  If your Honours please, those are my submissions.

KIEFEL CJ:   Yes, thank you.  The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow for pronouncement of orders and otherwise to 10.15 am.

AT 4.37 PM THE MATTER WAS ADJOURNED