Ad Hominem Parole Legislation, Chapter III and the High Court

• Author: Sarah Murray
• Position: Associate Professor, Law School, The University of Western Australia
• Pages: 275-285

AD HOMINEM

PAROLE LEGISLATION, CHAPTER

III AND THE HIGH COURT1

!

Sarah Murray*

This article explores the difficulties of bringing a Chapter III constitutional

challenge to parole legislation. The province of the executive domain and

becoming increasingly politicised, parole arises for consideration after the judicial

sentencing process is complete. This means that parole lacks the same

constitutional limits of the

Kable

-guarded judicature, even in cases where parole

legislation is

ad hominem

and has the practical effect of removing parole eligibility.

…because we should not delude ourselves and imagine that this is

the last time there will be a clamour from somewhere for a person

who becomes eligible for parole to have that eligibility legislated

away.

2

I INTRODUCTION

Section 74AA of the

Corrections Act 1986

(Vic) is an extraordinary provision.

Ad hominem

in nature, the Victorian section is directed to the ‘[c]onditions for

making a parole order for Julian Knight’. Its level of particularity is set down in

s 74AA(6) which clarifies that ‘Julian Knight is a reference to the Julian Knight

who was sentenced by the Supreme Court in November 1988 to life

imprisonment for each of 7 counts of murder’. Extraordinariness alone does

not, however, determine a provision’s legal validity. State parole legislation

such as this affecting Julian Knight presents a range of difficulties for a

constitutional challenge. This article explores these challenges. In particular, it

focuses on the central obstacle of recent High Court endorsement of the

considerable discretion that States have to regulate parole within the State

executive domain.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

1 This is an extended version of a post that initially appeared on AUSPUBLAW on 29 August 2017:

https://auspublaw.org/2017/08/knights-watch/.

* Associate Professor, Law School, The University of Western Australia.

2 Victoria,

Parliamentary Debates

, Legislative Assembly, 25 March 2014, 829 (Martin Pakula).