Baker v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ.,McHugh,Gummow,Hayne,Heydon JJ.,Kirby J.,Callinan
• Judgment Date: 01 October 2004
• Neutral Citation: 2004-1001 HCA A,[2004] HCA 45
• Court: High Court
• Docket Number: S395/2003
• Date: 01 October 2004

Allan Baker

Appellant

and

The Queen

Respondent

[2004] HCA 45

Gleeson CJ, Gummow, Kirby, HayneCallinan and Heydon JJ

S395/2003

HIGH COURT OF AUSTRALIA

Baker v The Queen

Constitutional law (Cth) — Judicial power of Commonwealth — Vesting of federal jurisdiction in State courts — Act empowering State court to determine a minimum term and an additional term for persons serving an existing sentence of life imprisonment — Act prohibiting such determination in respect of prisoners the subject of a non-release recommendation by the original sentencing judge unless ‘special reasons’ justified making the determination — Whether incompatible with State court being a suitable repository of judicial power of the Commonwealth.

Constitutional law (NSW) — Separation of powers — Power of State Parliament to confer function incompatible with exercise by State court of judicial power of the Commonwealth — Where class of affected persons closed and known — Whether judicial discretion preserved — Whether judicial function prescribed by Act compatible with State court being a suitable repository of judicial power of the Commonwealth.

Words and phrases — ‘special reasons’.

Constitution, Ch III.

Sentencing Act 1989 (NSW), s 13A.

Sentencing Legislation Further Amendment Act 1997 (NSW).

Representation:

B W Walker SC with A P Cook for the appellant (instructed by Legal Aid Commission of New South Wales)

M G Sexton SC, Solicitor-General for the State of New South Wales with R D Cogswell SC and J G Renwick for the respondent and intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)

Intervener:

H C Burmester QC with N L Sharp intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with K H Glancy intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor's Office for Western Australia)

C J Kourakis QC, Solicitor-General for the State of South Australia with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office for South Australia)

ORDER

Appeal dismissed.

1 Gleeson CJ. This is an appeal from a decision of the Court of Criminal Appeal of New South Wales 1 (Ipp AJA, Dunford and Bergin JJ) which dismissed an appeal from a decision of Greg James J of the Supreme Court of New South Wales declaring that the appellant was not eligible for a determination under s 13A of the Sentencing Act 1989 (NSW) as it stood at the relevant time. The legislation has since been changed in various respects, but nothing turns on that. In reaching his conclusion, the primary judge applied the provisions of sub-s (3A) of s 13A. Section 13A dealt with persons serving existing life sentences, that is to say, sentences of imprisonment for life imposed before or after the commencement of the section. The appellant was such a person. How that came about is explained in the reasons of other members of the Court. The primary judge referred to ‘the appalling nature of the [appellant's] crimes and their surrounding circumstances’. In view of the issue argued on this appeal, it is unnecessary to elaborate on that. Sub-section (2) of s 13A entitled a person serving an existing life sentence to apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence. In effect, such a determination, when made, would alter an indeterminate to a determinate sentence, and would fix a minimum period as the least period which the prisoner would have to serve before being eligible for release on parole. Sub-section (9) of s 13A set out matters to which the Supreme Court, in exercising its functions under s 13A, was to have regard.

2 Section 13A distinguished between the general class of persons serving an existing life sentence and a particular class to which the appellant belonged, that is to say, persons who were the subject of a non-release recommendation. A non-release recommendation was defined by sub-s (1) as a recommendation or observation, or an expression of opinion, by the original sentencing court that the person should never be released from imprisonment. Sub-section (9)(a) threw further light on that by referring to ‘the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act1900 and of the practice relating to the issue of such licences’. In some cases, including the case of the appellant, sentencing judges had recommended against the possibility of release on licence. There was no statutory basis for such recommendations, and they had no legal effect beyond the significance that any other judicial observation about an offender in the course of sentencing might have had where a question of release on licence came to be considered by the Executive. Sub-section (3) provided that, if a person was the subject of a non-release recommendation, he or she could not make an application under s 13A for 20 years from the commencement of the sentence.

3 Of particular relevance to this appeal is sub-s (3A), which provided:

‘A person who is the subject of a non-release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when considering the person's application under this section, is satisfied that special reasons exist that justify making the determination.’

4 The primary judge was not satisfied that special reasons existed within the meaning of sub-s (3A). The merits of that conclusion were argued in the Court of Criminal Appeal, but are not before this Court. It may be noted, however, that the argument before the primary judge and the Court of Criminal Appeal on that issue proceeded upon the assumption that the requirements of sub-s (3A) were not devoid of content, even though they may have been difficult for the appellant to satisfy. The ground of appeal to this Court is that the 1997 legislation which amended s 13A to introduce special provisions about people who were the subject of non-release recommendations was invalid. The sole ground of invalidity, which was also considered and rejected by the Court of Criminal Appeal, was expressed in the appellant's notice under s 78B of the Judiciary Act 1903 (Cth) as follows:

‘The appellant seeks to raise an argument that the requirement in the legislation that he show that there are “special reasons” to justify a determination of his life sentence [sic] is invalid as being inconsistent with the exercise by the Supreme Court of federal judicial power.’

5 The kind of inconsistency relied upon is that identified in Kable v Director of Public Prosecutions (NSW)2. The principle for which that case stands as authority is that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.

6 The strength of that principle lies in its constitutional legitimacy. It was not an invention of a method by which judges may wash their hands of the responsibility of applying laws of which they disapprove. In some of the judgments in Kable, references were made to public confidence in the courts. Confidence is not something that exists in the abstract. It is related to some quality or qualities which one person believes to exist in another. The most basic quality of courts in which the public should have confidence is that they will administer justice according to law. As Brennan CJ said in Nicholas v The Queen3:

‘It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice.’

7 Senior counsel for the appellant expressly disclaimed any suggestion that the retrospective operation of the law was relevant to his argument. He was right to do so. Retrospectivity is a slippery concept, especially in its application to laws affecting the sentencing and custodial regimes which apply to prisoners already serving sentences. Such regimes are almost always affected in various ways by legislative, judicial, and administrative decision-making. To take the most obvious example, conditions of incarceration alter from time to time with changes in executive policy. In New South Wales, the system of release on parole historically involved both judicial and administrative decisions, and the interaction of that system with administrative procedures concerning remission of sentence gave rise to the problems that were addressed by the Sentencing Act 1989 (NSW). The history of those problems, and an explanation of the legislative solution, may be seen in R v Maclay4. As the judgment in that case makes clear, and as should in any event be obvious, legislative and administrative changes to systems of parole and remissions usually affect people serving existing sentences. The longer the original sentence, the more likely it is that an offender will be affected by subsequent changes in penal policy. It is unnecessary to go into the history of legislation in New South Wales concerning sentencing in cases where imprisonment for life is fixed as the penalty, whether that be mandatory or the maximum. There have been a number of such...