Knight v Victoria

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Bell,Gageler,Keane,Nettle,Gordon,Edelman JJ.
• Judgment Date: 17 August 2017
• Neutral Citation: [2017] HCA 29
• Docket Number: M251/2015
• Date: 17 August 2017

[2017] HCA 29

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ

M251/2015

Julian Knight

Plaintiff

and

The State of Victoria & Anor

Defendants

Representation

K L Walker QC and D B Bongiorno with B C Gauntlett for the plaintiff (instructed by Stary Norton Halphen)

R M Niall QC, Solicitor-General for the State of Victoria with G A Hill for the first defendant (instructed by Victorian Government Solicitor)

Submitting appearance for the second defendant

S P Donaghue QC, Solicitor-General of the Commonwealth with G J D del Villar for the Attorney-General of the Commonwealth, intervening (instructed by Australian 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 (NSW))

P J Dunning QC, Solicitor-General of the State of Queensland with A D Keyes for the Attorney-General of the State of Queensland, intervening (instructed by Crown Solicitor (Qld))

P D Quinlan SC, Solicitor-General for the State of Western Australia with H C Richardson for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

C D Bleby SC, Solicitor-General for the State of South Australia with F J McDonald for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

Corrections Act 1986 (Vic), ss 61, 61A, 64, 74, 74AA, 74AAB.

Corrections Amendment (Parole) Act 2014 (Vic), ss 1, 3.

Interpretation of Legislation Act 1984 (Vic), ss 4, 6.

Penalties and Sentences Act 1985 (Vic), s 17.

Sentencing Act 1991 (Vic), Sched 1, cl 2.

Constitutional law (Cth) — Constitution — Ch III — State Supreme Courts — Principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 — Where s 74AA of Corrections Act 1986 (Vic) prevents 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 — Where s 74AA identifies plaintiff by name and only applies to plaintiff — Whether s 74AA interferes with sentences imposed by Supreme Court in manner which substantially impairs institutional integrity of Supreme Court — Whether Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 distinguishable — Whether necessary or appropriate to decide if function conferred by s 74AA could validly be exercised by division of Adult Parole Board which includes current judicial officer.

Words and phrases — “enlistment of judicial officers”, “institutional integrity”, “minimum term”, “non-parole period”, “parole”, “party-specific legislation”, “sentencing”.

Constitution, Ch III.

ORDER

The questions stated by the parties in the amended special case dated 17 February 2017 and referred for consideration by the Full Court be answered as follows:

Question (a)

Is s 74AA of the [Corrections Act 1986 (Vic)] invalid on the ground it is contrary to Ch III of the Constitution?

Answer

No.

Question (b)

Who should pay the costs of the proceeding?

Answer

The plaintiff.

1 Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ. On 10 November 1988, Julian Knight pleaded guilty in the Supreme Court of Victoria to seven counts of murder and 46 counts of attempted murder. The Supreme Court sentenced him to imprisonment for life in respect of each count of murder, and imprisonment for 10 years in respect of each count of attempted murder, and fixed a minimum term of 27 years as the term during which he was not to be released on parole. The minimum term was fixed under s 17 of the Penalties and Sentences Act 1985 (Vic) (“the Sentences Act”) and since the enactment of the Sentencing Act 1991 (Vic) has been referred to as a non-parole period. The non-parole period fixed in respect of Mr Knight expired on or about 8 May 2014.

2 On 2 April 2014, when expiration of the non-parole period was imminent, the Parliament of Victoria enacted the Corrections Amendment (Parole) Act 2014 (Vic) (“the Amending Act”). The Amending Act inserted a new s 74AA into the Corrections Act 1986 (Vic) (“the Corrections Act”).

3 The effect of s 74AA of the Corrections Act is to prevent the Adult Parole Board (“the Board”) from ordering that Mr Knight be released on parole unless satisfied, amongst other things, that Mr Knight 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. Mr Knight is not at present in imminent danger of dying. Nor is he seriously incapacitated.

4 By special case in a proceeding brought by Mr Knight against the State of Victoria and the Adult Parole Board in the original jurisdiction of the High Court, a single substantive question has been stated for the opinion of the Full Court. Is s 74AA invalid on the ground that it is contrary to Ch III of the Constitution?

5 In support of an affirmative answer to that question, Mr Knight advances two discrete arguments. Each seeks in a different way to invoke the principle, associated with Kable v Director of Public Prosecutions (NSW)1, that a law which substantially impairs the institutional integrity of a court so as to be incompatible with its role as a repository of federal jurisdiction under Ch III of

the Constitution is invalid 2. The first argument is that the section interferes with the sentences imposed by the Supreme Court. The second is that the section enlists judicial officers who are members of the Board in a function that is repugnant to or incompatible with the exercise of federal jurisdiction by the courts of which those judicial officers are members.

6 The question is to be answered in the negative. The first argument fails because neither in its legal form nor in its substantial practical operation does the section interfere with the sentences imposed by the Supreme Court. The second argument fails because the Board has not in fact been constituted, and does not need to be constituted, to include a judicial officer for the purpose of performing the function conferred by the section. Whether the function conferred by the section would be repugnant to or incompatible with the exercise of federal jurisdiction by the court of which a judicial officer is a member is not appropriate for determination.

The sentence

7 Section 17 of the Sentences Act, in the form in which it stood on 10 November 1988, required a court imposing a sentence of two or more years to fix “as part of the sentence” a lesser term, called a “minimum term”, which was to be at least six months less than the term of the sentence, “during which the offender shall not be eligible to be released on parole”, unless the court considered that “the nature of the offence and the antecedents of the offender render[ed] the fixing of a minimum term inappropriate”.

8 When sentencing Mr Knight in the Supreme Court, Hampel J correctly characterised a minimum term not as a period at the end of which the prisoner was to be released but rather as “a period before the expiration of which, having regard to the interest of justice, he cannot be released” 3. His Honour noted that the nature and purpose of a minimum term was that stated in Power v The Queen4:

“to provide for 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” 5.

9 Noting that the prosecution did not contend that a minimum term should not be fixed, Hampel J considered that fixing a minimum term was appropriate having regard to Mr Knight's age and prospects of rehabilitation as well as to other mitigating factors. In fixing the minimum term at 27 years, Hampel J took into account, on the one hand, the need to ensure that the minimum term did not destroy the punitive effect of the sentences of imprisonment for life and, on the other hand, that an unduly high minimum term would defeat the purpose of Mr Knight's rehabilitation and possible release at a time when he would still be able to adjust to life in the community 6.

The parole regime

10 Section 74AA was inserted into the parole regime created by Div 5 of Pt 8 of the Corrections Act. That regime establishes the Board 7, which is to consist of persons appointed by the Governor in Council as well as the Secretary to the Department of Justice and Regulation 8. Persons able to be so appointed to the Board include Judges and Associate Judges of the Supreme Court, Judges of the County Court and Magistrates 9. They also include retired Judges of the Supreme Court or the County Court and retired Magistrates 10. The Governor in Council

must appoint a member who is a Judge or retired Judge to be chairperson of the Board 11.

11 Membership of the Board currently includes a Judge of the County Court, two retired Judges of the County Court, a number of Magistrates and a number of retired Magistrates, some of whom are reserve Magistrates under the Magistrates' Court Act 1989 (Vic). No Judges or Associate Judges of the Supreme Court are currently members. The current chairperson of the Board is one of the two retired Judges of the County Court.

12 The central functions of the Board are the making under s 74 and cancellation under s 77 of parole orders, a parole order being an order, by instrument, “that a prisoner serving a prison sentence in respect of which a non-parole period was fixed be released on parole at the time stated in the order (not being before the end of the non-parole period)” 12. In determining whether to make or cancel a parole order, the Board is obliged to give paramount consideration to the safety and...