Schneider v Royal Crown Gold Reserve Inc.

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane,Nettle,Gordon JJ.,Edelman J.
• Judgment Date: 11 September 2019
• Neutral Citation: [2019] HCA 31
• Court: High Court
• Docket Number: M162/2018
• Date: 11 September 2019

[2019] HCA 31

HIGH COURT OF AUSTRALIA

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

M162/2018

Craig William John Minogue

Plaintiff

and

State of Victoria

Defendant

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))

Constitution, Ch III.

Corrections Act 1986 (Vic), ss 74AAA, 74AB, 127A.

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 or separate punishment”, “judicial power”, “legislative punishment”, “legislatively resentenced”, “life imprisonment”, “minimum term”, “more punitive or burdensome to liberty”, “non-parole period”, “opportunity to be considered for release on parole”, “parole”, “severity of the punishment”, “substantive operation and practical effect”.

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.

1 Kiefel CJ, Bell, Keane, Nettle AND Gordon JJ. On 24 August 1988, the plaintiff was convicted of the murder of Angela Rose Taylor, a constable in the Victorian police force, and was sentenced by the Supreme Court of Victoria to imprisonment for life. The Court set a non-parole period of 28 years, during which term the plaintiff would not be eligible to be released on parole 1. The plaintiff's non-parole period ended on 30 September 2016. On 3 October 2016, the plaintiff applied to the Adult Parole Board (“the Board”) for parole. That application remains on foot and has not been determined.

2 On 14 December 2016, a new provision in the Corrections Act 1986 (Vic) (“the Act”), s 74AAA, commenced operation 2. As originally enacted, s 74AAA relevantly provided that the Board must not make a parole order under s 74 or s 78 of the Act in respect of a prisoner convicted and sentenced to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless, among other things, the Board was satisfied that the prisoner was in imminent danger of dying, or was seriously incapacitated and, as a result, no longer had the physical ability to do harm to any person 3. The plaintiff commenced proceedings in this Court seeking to challenge the constitutional validity of s 74AAA (as originally enacted) and, on 20 June 2018, this Court relevantly held (without deciding the constitutional issue) that s 74AAA of the Act (as then in force) did not apply to the plaintiff 4.

3 On 1 August 2018, the Act was further amended 5 to insert a new s 74AB and to substitute ss 74AAA and 127A. The new s 74AB applies specifically to

the plaintiff; it sets out “[c]onditions for making a parole order for Craig Minogue”. It provides

• “(1) The Board must not make a parole order under section 74 or 78 in respect of the prisoner Craig Minogue unless an application for the order is made to the Board by or on behalf of the prisoner.

• (2) The application must be lodged with the secretary of the Board.

• (3) After considering the application, the Board may make an order under section 74 or 78 in respect of the prisoner Craig Minogue if, and only if, the Board -

  • (a) is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner –

    • (i) is in imminent danger of dying or is seriously incapacitated and, as a result, he no longer has the physical ability to do harm to any person; and

    • (ii) has demonstrated that he does not pose a risk to the community; and

  • (b) is further satisfied that, because of those circumstances, the making of the order is justified.

• (4) The Charter of Human Rights and Responsibilities Act 2006 has no application to this section.

• (5) Without limiting subsection (4), section 31(7) of the Charter of Human Rights and Responsibilities Act 2006 does not apply to this section.

• (6) In this section, a reference to the prisoner Craig Minogue is a reference to the Craig William Minogue who was sentenced by the Supreme Court on 24 August 1988 to life imprisonment for one count of murder.”

4 Section 74AB applies to the plaintiff regardless of whether, before the commencement of that section, the plaintiff had become eligible for parole, or the plaintiff had taken any steps to ask the Board to grant the plaintiff parole, or the Board had begun any consideration of whether the plaintiff should be granted parole 6.

5 On the other hand, the substituted s 74AAA, headed “Conditions for making parole order for prisoner who murdered police officer”, is in general terms. It applies if a person has been convicted of murder and the victim was a police officer. The Board must be satisfied that, relevantly, the person intended to cause, or knew that it was probable that their conduct would cause, the death of, or really serious injury to, a police officer. Because it is not necessary to consider the validity of the substituted s 74AAA, its text need not be set out.

6 On 23 October 2018, the plaintiff commenced proceedings in this Court challenging the constitutional validity of s 74AB and, if it applied, s 74AAA on the ground that the provisions impermissibly legislatively resentenced the plaintiff and that that legislative resentencing was beyond the powers of the Victorian Parliament. Specifically, the plaintiff contended that s 74AB and, if it applied, s 74AAA are contrary to Ch III of the Constitution insofar as: first, the substantive operation and practical effect of the provisions are to impose an additional or separate punishment to the punishment imposed by the Supreme Court at the time of sentencing by extending the non-parole period or by increasing the severity of the plaintiff's punishment; second, the provisions constitute cruel, inhuman or degrading treatment or punishment contrary to Art 10 of the Bill of Rights 1688 7; or third, the provisions are inconsistent with the constitutional assumption of the rule of law 8. The defendant, the State of Victoria, contended that s 74AB is valid and does not constitute legislative punishment, and that the question of the validity of s 74AAA did not arise in this case. The Attorneys-General for New South Wales, South Australia and Western Australia intervened in support of the defendant 9.

7 Four questions were stated for the opinion of the Court:

• “(a) Is s 74AB of the Act invalid?

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

• (c) If the answer to question (b) is ‘yes’, is s 74AAA invalid?

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

8 The questions should be answered:

• (a) No.

• (b) No.

• (c) Does not arise.

• (d) The plaintiff.

9 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...