Minogue v Victoria

Case [2019] HCA 31

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

CRAIG WILLIAM JOHN MINOGUE  PLAINTIFF

AND

STATE OF VICTORIA  DEFENDANT

Minogue v Victoria

[2019] HCA 31

11 September 2019

M162/2018

ORDER

The questions formally stated for the opinion of the Full Court should be answered as follows:

(a)Is s 74AB of the Corrections Act 1986 (Vic) invalid?

Answer:No.

(b)Does the validity of s 74AAA of the Corrections Act arise in the circumstances of this case?

Answer:No.

(c)If the answer to question (b) is "yes", is s 74AAA of the Corrections Act invalid?

Answer:Does not arise.

(d)Who should pay the costs of the Special Case?

Answer:The plaintiff.

Representation

C J Horan QC and A F Solomon-Bridge with R A Minson for the plaintiff (instructed by Darebin Community Legal Centre)

P J Hanks QC and A D Pound with S Zeleznikow for the defendant (instructed by Victorian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with J E Davidson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

C D Bleby SC, Solicitor-General for the State of South Australia, with E M G Crompton for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

J A Thomson SC, Solicitor-General for the State of Western Australia, with F B Seaward for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minogue v Victoria

Constitutional law – State Parliament – Constitution – Ch III – Where plaintiff convicted of murder of police officer – Where plaintiff sentenced to imprisonment for life with non-parole period – Where plaintiff's non-parole period expired – Where s 74AB of Corrections Act 1986 (Vic) prevented making of parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person, and does not pose risk to community – Where s 74AB identified plaintiff by name and applied only to plaintiff – Where plaintiff not in imminent danger of dying or seriously incapacitated – Where s 74AAA of Corrections Act imposed conditions for making parole order if person convicted of murder and victim police officer – Whether ss 74AB and 74AAA contrary to Ch III of Constitution and therefore invalid – Whether ss 74AB and 74AAA impermissibly legislatively resentenced plaintiff – Whether ss 74AB and 74AAA impose additional or separate punishment to that imposed by sentencing court – Whether s 74AB distinguishable from provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 – Whether Knight and Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 should be reopened.

Words and phrases – "additional…

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Minogue v Victoria [2019] HCA 31
Case
[2019] HCA 31
Decision Date

CaseChat Overview and Summary

The plaintiff, who had been convicted of murder and sentenced to life imprisonment with a non-parole period, challenged the constitutional validity of sections 74AB and 74AAA of the *Corrections Act 1986* (Vic). The plaintiff argued that these provisions, which imposed specific conditions on his eligibility for parole, impermissibly legislatively resentenced him and imposed additional or separate punishment beyond that ordered by the sentencing court, thereby contravening Chapter III of the Australian Constitution. The case was heard by the High Court of Australia.

The central legal issues before the Court were whether sections 74AB and 74AAA of the *Corrections Act 1986* (Vic) were invalid on the grounds that they contravened Chapter III of the Constitution. Specifically, the Court had to determine if these sections impermissibly legislatively resentenced the plaintiff, imposed additional or separate punishment, or otherwise constituted an exercise of judicial power by the legislature. The Court was also asked to consider whether the precedent set in *Knight v Victoria* and *Crump v New South Wales* should be reopened.

The High Court held that section 74AB of the *Corrections Act 1986* (Vic) was not invalid. The Court reasoned that section 74AB was substantively indistinguishable from the provision upheld in *Knight v Victoria*, which in turn relied on the principles established in *Crump v New South Wales*. These decisions established that such provisions do not alter a sentence or impose additional punishment, nor do they involve the exercise of judicial power. Instead, section 74AB merely alters the conditions that must be met before parole can be granted. The Court found that the section was a legislative exercise of legislative power, not judicial power, and did not impose punishment in the traditional sense, but rather regulated the circumstances under which the Adult Parole Board could make a parole order. Consequently, the Court found it unnecessary to consider the plaintiff's arguments regarding additional punishment or increased severity of punishment.

The Court answered the formally stated questions as follows: section 74AB of the *Corrections Act 1986* (Vic) is not invalid. The validity of section 74AAA of the *Corrections Act* did not arise in the circumstances of the case. The plaintiff was ordered to pay the costs of the Special Case.

Orders

Orders of the court

The questions formally stated for the opinion of the Full Court should be answered as follows:

(a) Is s 74AB of the Corrections Act 1986 (Vic) invalid?

Answer: No.

(b) Does the validity of s 74AAA of the Corrections Act arise in the circumstances of this case?

Answer: No.

(c) If the answer to question (b) is "yes", is s 74AAA of the Corrections Act invalid?

Answer: Does not arise.

(d) Who should pay the costs of the Special Case?

Answer: The plaintiff.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ GAGELER J EDELMAN J
If s 74AB of the Corrections Act imposed punishment upon the plaintiff in the traditional sense then this might be conclusive of its character as an exercise of judicial power[89]. Ultimately, however, the fundamental issue in this case is not the boundaries of the concept of punishment or whether preventive orders could be characterised as falling within an extended conception of punishment. The issue is whether s 74AB of the Corrections Act is an exercise of judicial power. Section 74AB does not bear sufficient hallmarks to be characterised as an exercise of judicial power. It does not impose punishment in the traditional sense. It is forward looking, rather than imposing additional punishment for a past offence. Although it would be significant, but not conclusive[90], if all of the amendments to the parole regime were directed only at the plaintiff[91], s 74AB of the Corrections Act is part of a regime of amendments that is of general application even if its enactment may have been motivated by an intention to respond to the plaintiff's circumstances. It was enacted by the legislative process. Like the laws considered in Crump v New South Wales[92] and in Knight v Victoria[93], it is a legislative exercise of only legislative power.[89]Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 444; [1918] HCA 56; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27; [1992] HCA 64. See also Magaming v The Queen (2013) 252 CLR 381 at 396 [47], 399‑400 [61]‑[62]; [2013] HCA 40; Duncan v New South Wales (2015) 255 CLR 388 at 407 [41]; Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 340 [14]‑[15], 357 [88]; [2018] HCA 2.[90]See Knight v Victoria (2017) 261 CLR 306 at 323 [26].[91]See Murray, "Ad Hominem Parole Legislation, Chapter III and the High Court" (2018) 43 University of Western Australia Law Review 275 at 281.[92](2012) 247 CLR 1.[93](2017) 261 CLR 306.Conclusion Section 74AB of the Corrections Act was not enacted for the purposes of punishing the plaintiff by altering his minimum period of non-parole. It was not an exercise of judicial power by the legislature. I agree with the answers to the stated questions given by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ, GAGELER J, EDELMAN J

Section 74AB is relevantly indistinguishable from the provision upheld by this Court in Knight v Victoria[10]. In Knight, the Court refused to reopen and overturn its decision in Crump v New South Wales[11]. The decisions in Knight and Crump compel the conclusion that s 74AB does not alter the plaintiff's sentence, or impose additional or separate punishment on the plaintiff beyond the punishment imposed by the Supreme Court at the time of sentencing, and does not involve the exercise of judicial power. Section 74AB does no more than alter the conditions to be met before the plaintiff can be released on parole[12]. And, contrary to the plaintiff's alternative submissions, neither Crump nor Knight should now be reopened. As neither the substantive operation nor the practical effect of s 74AB is to impose punishment on the plaintiff, it is unnecessary to consider the plaintiff's second and third contentions.[10](2017) 261 CLR 306.[11](2012) 247 CLR 1; [2012] HCA 20.[12]Crump (2012) 247 CLR 1 at 29 [72]; see also at 19 [35], 26-27 [60], 29-30 [74].Operation and effect of s 74AB − no legislative punishment Section 74AB is in substantively identical terms to the provision upheld in Knight[13]. The principal difference is that s 74AB refers to the plaintiff (rather than Mr Knight). [13](2017) 261 CLR 306 at 320-321 [18]. See also Corrections Act, s 74AA. Section 74AB is directed to the Board. It restricts the circumstances in which the Board may make a parole order under s 74 or s 78 of the Act in respect of the plaintiff. First, the section prevents the Board from making an order granting parole unless the plaintiff has lodged an application for parole with the secretary of the Board[14]. Second, it provides that the Board "may" order that the plaintiff be released on parole "if, and only if" the Board is satisfied, among other things, that the plaintiff is in imminent danger of dying or is seriously incapacitated and that, as a result, he no longer has the physical ability to do harm to any person[15]. The plaintiff is not at present in imminent danger of dying; nor is he seriously incapacitated. [14]Corrections Act, s 74AB(1) and (2).[15]Corrections Act, s 74AB(3). In Knight, the Court unanimously concluded that the relevant provision did not interfere with the sentence imposed on Mr Knight in a manner that was contrary to Ch III of the Constitution[16] and did not, in its "legal form [or] in its substantial practical operation", interfere with, set aside, alter or vary the sentence imposed by the Supreme Court[17].[16](2017) 261 CLR 306 at 317 [5], 322 [23], 326 [38] (question (a) of the special case).[17]Knight (2017) 261 CLR 306 at 317 [6]; see also at 323 [25]. See also Crump (2012) 247 CLR 1 at 27 [60]. In this proceeding, the plaintiff sought to build on the undisputed proposition that the imposition of punishment, or punitive treatment, or additional punishment or punitive treatment, as a consequence of criminal guilt is an exclusively judicial power or function[18]. The plaintiff contended that, notwithstanding the decision in Knight, the substantive operation and practical effect of s 74AB were impermissibly to legislatively resentence the plaintiff in two respects. First, the plaintiff contended that the substantive operation and practical effect of s 74AB are to extend the non-parole period by rendering him ineligible for parole for an indefinite period beyond the non-parole period imposed by the Supreme Court and, thus, to impose an additional or separate punishment to the punishment imposed by the Supreme Court at the time of sentencing. Second, the plaintiff contended that s 74AB increases the severity of the plaintiff's punishment by causing the plaintiff to lose an opportunity to be released on parole during that period. Section 74AB does not do these things. The plaintiff's contentions are contrary to several long‑standing propositions. [18]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27; [1992] HCA 64; Crump (2012) 247 CLR 1 at 16 [27], 20‑21 [41]-[42].