Cherry v Queensland

• Jurisdiction: Queensland
• Court: High Court
• Judge: Gageler CJ,Gordon,Edelman,Steward,Gleeson,Jagot,Beech-Jones JJ
• Judgment Date: 09 April 2025
• Neutral Citation: [2025] HCA 14
• Year: 2025
• Docket Number: B11/2024

Rodney Michael Cherry

Plaintiff

and

State of Queensland

Defendant

[2025] HCA 14

Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot AND Beech-Jones JJ

B11/2024

HIGH COURT OF AUSTRALIA

Constitutional law — Separation of powers — Judicial power — Principle established in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (“ Kable”) — Where plaintiff convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 20 years — Where body of one of murder victims never located — Where parole board of Queensland may make “no cooperation declaration” under s 175L of Corrective Services Act 2006 (Qld) (“CS Act”) about “no body-no parole prisoner” where remains of victim not found and where not satisfied prisoner has given “satisfactory cooperation” — Where effect of “no cooperation declaration” is that prisoner may not apply for parole notwithstanding expiration of non-parole period — Where president of parole board may make “restricted prisoner declaration” about “restricted prisoner” under s 175E of CS Act — Where effect of “restricted prisoner declaration” is that prisoner may not apply for parole other than “exceptional circumstances parole” — Where “no cooperation declaration” was made about plaintiff and “restricted prisoner declaration” may be made if “no cooperation declaration” invalid — Whether ss 175L and 175E of CS Act invalid as enabling Queensland executive to impermissibly interfere with exercise of judicial power by State courts contrary to principle in Kable.

Words and phrases — “adjudgment of criminal guilt”, “body or remains”, “conditions for the grant of parole”, “defining characteristics of a State Supreme Court”, “eligibility for parole”, “eligible person”, “exceptional circumstances parole”, “executive power”, “judicial power”, “minimum period of imprisonment”, “no body-no parole prisoner”, “no cooperation declaration”, “non-parole period”, “parole”, “parole board”, “power to grant parole”, “prisoner”, “public interest”, “punishment”, “punitive purpose”, “restricted prisoner”, “restricted prisoner declaration”, “retribution”, “satisfactory cooperation”, “sentence imposed by the sentencing judge”.

Corrective Services Act 2006 (Qld), ss 175B, 175C, 175D, 175E, 175F, 175G, 175H, 175I, 175K, 175L, 175N, 175O, 175P, 175Q, 175R, 175S, 175T, 175U, 176, 176A, 176B, 176C, 180, 193A, 193AA, 221, 222.

Corrective Services (No Body, No Parole) Amendment Act 2017 (Qld).

Police Powers and Responsibilities and Other Legislation Amendment Act 2021 (Qld).

Crimes (Administration of Sentences) Act 1999 (NSW), s 154A.

Corrections Act 1986 (Vic), ss 74AA, 74AAA, 74AB.

Representation

A D Scott KC with Z G Brereton for the plaintiff (instructed by Prisoners' Legal Service)

G J D del Villar KC, Solicitor-General of the State of Queensland, with F J Nagorcka and G F Perry for the defendant (instructed by Crown Law (Qld))

M J Wait SC, Solicitor-General for the State of South Australia, with J F Metzer for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

N Christrup SC, Solicitor-General for the Northern Territory, with L S Spargo-Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)

C S Bydder SC, Solicitor-General for the State of Western Australia, with D Van Nellestijn for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

A D Pound SC, Solicitor-General for the State of Victoria, with F L Batten for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor's Office)

J S Caldwell for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

The questions stated for the opinion of the Full Court in the special case filed on 4 October 2024 be answered as follows:

Question (a): Is s 175L of the Corrective Services Act 2006 (Qld) invalid because it enables the Queensland Executive to impermissibly interfere with the exercise of judicial power by State Courts, contrary to the principle established in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51?

Answer: No.

Question (b): Is s 175E of the Corrective Services Act 2006 (Qld) invalid because it enables the Queensland Executive to impermissibly interfere with the exercise of judicial power by State Courts, contrary to the principle established in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51?

Answer: No answer is required.

Question (c): If the answer to Question (a) is “yes”, does s 193A of the Corrective Services Act 2006 (Qld) as in force before the commencement of the amendments made by Pt 3 of the Police Powers and Responsibilities and Other Legislation Amendment Act 2021 (Qld) (including omissions and substitutions) apply to the plaintiff?

Answer: No answer is required given the answer to question (a).

Question (d): Who should pay the costs of the proceeding?

Answer: The plaintiff.

1 Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot AND Beech-Jones JJ. By a proceeding commenced in the original jurisdiction of this Court the plaintiff challenges the constitutional validity of ss 175L and 175E of the Corrective Services Act 2006 (Qld) (“the CS Act”). The plaintiff submits that each provision permits the executive branch of State government to interfere impermissibly with the exercise of judicial power by the Supreme Court of Queensland contrary to the principle established by this Court in Kable v Director of Public Prosecutions (NSW). 1 If s 175L were found to be invalid, the parties have agreed by special case to ask a further question, namely, whether former s 193A of the CS Act would thereby apply to the plaintiff. For the reasons which follow, the plaintiff's challenge to the validity of s 175L fails and it is otherwise unnecessary for this Court to consider the validity of s 175E or the possible application of former s 193A.

2 The plaintiff's challenge to the validity of ss 175L and 175E faces the difficult task of distinguishing the principles established by the decisions of this Court in Crump v New South Wales, 2 Knight v Victoria 3 and Minogue v Victoria. 4 In essence, those cases establish that a State may validly change the conditions for a grant of parole from time to time and that this does not constitute an impermissible interference with judicial power.

Applicable legislation

3 Chapter 5 of the CS Act sets out a series of provisions regulating the grant of parole in Queensland. Sections 175L and 175E are contained in Pt 1AB of Ch 5, which deals with two types of parole “declarations” that may be made by the parole board of Queensland or its president.

No cooperation declarations

4 Division 2 of Pt 1AB addresses the making of a “no cooperation declaration”. Section 175L provides that if the parole board is “not satisfied a no

body-no parole prisoner has given satisfactory cooperation” the board must make a no cooperation declaration about the prisoner. The declaration may be made when a prisoner applies for parole or when the board otherwise decides to consider whether to make the declaration. 5

5 Section 175C defines a “no body-no parole prisoner” as follows:

“A prisoner is a no body-no parole prisoner if—

• (a) the prisoner is serving a period of imprisonment for a homicide offence; and

• (b) either—

  • (i) the body or remains of the victim of the offence have not been located; or

  • (ii) because of an act or omission of the prisoner or another person, part of the body or remains of the victim has not been located.”

6 For the purposes of deciding whether a prisoner has given satisfactory cooperation, the parole board must have regard to: a report about the prisoner's cooperation prepared by the commissioner of the police service; any information about the prisoner's capacity to give satisfactory cooperation; any relevant remarks made by the sentencing court; and, if the prisoner requests, the transcript of the proceeding for the homicide offence. 6 The material to which the parole board has regard might include any written submission given by the prisoner at the invitation of the board. 7 A commissioner's report must contain a statement as to whether the prisoner has given any cooperation in relation to the homicide offence for which

the prisoner is serving a sentence of imprisonment, and, if the prisoner has given cooperation, an evaluation of what the prisoner has done. 8

7 If made, a no cooperation declaration must relevantly state: the reasons the board is not satisfied the prisoner has given satisfactory cooperation; that the prisoner may not apply for parole under s 176 9 or s 180 10 of the CS Act (unless the prisoner is subsequently given a notice under s 175Q); and that the prisoner may, at any time, make a reconsideration application. 11 The board must give a copy of the declaration to the prisoner. 12 If the prisoner stops being a no body-no parole prisoner (which would occur if the body or remains of the victim were located), the no cooperation declaration ends. 13

8 Section 175R(2) of the CS Act provides that at any time after receiving a copy of the no cooperation declaration, a prisoner may apply to the president or a deputy president of the parole board, asking them to call a meeting of the board to reconsider the board's decision to make the no cooperation declaration. The reconsideration application may state: whether the prisoner has given the police additional information; whether there has been a material change in the prisoner's capacity to cooperate satisfactorily; and any other reason why the prisoner considers it appropriate to grant the application. 14 The president or deputy president may only grant the reconsideration application if satisfied that the...