In Minogue v Victoria, the High Court has rejected an application to declare certain provisions of the Corrections Act (Vic) constitutionally invalid. In doing so, the Court has affirmed Crump and Knight.and discussed the distinction between the executive and judicial powers in the context of parole decisions.
The applicant was sentenced to life in prison for the bombing murder of a police women in Victoria in 1986. His non-parole period expired in 2016. Subsequently, the Victorian Parliament inserted into the Corrections Act a provision that limited the circumstances in which a person involved in the murder of a police officer could be grated parole. In 2018, the applicant challenged the constitutional validity of that provision but the High Court found that the provision in question did not apply to him (and so did not rule on the constitutionality question).
So, the Victorian parliament took a second bite of the cherry and inserted another provision into the Corrections Act which identified the applicant by name. This new section said that the Parole Board could only grant parole if they were
- (a) is satisfied … that [Minogue]
- (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.
The Applicant challenged this provision, arguing that it represented an exercise of judicial power by the legislature by altering his sentence or imposing additional punishment.
The Court unanimously rejected this argument, and therefore found that the section is not an exercise of the judicial power. In doing so, the court also rejected an application to reopen the two leading cases of Crump and Knight. (The finding that the section did not impose punishment was fatal to two other arguments advances, namely that law violated the 1688 Bill of Rights prohibition on cruel and unusual punishment; and that it violated the “constitutional assumption of the rule of law” (at [6])).
The Court distinguished between a judge exercising the power to sentence, including setting a non-parole period, and a determination by a parole authority to release a person on parole. The former is indisputably ‘an exclusively judicial power’ (at [13]) whereas the later is executive.
The terms of the legislation in question did not amend the non-parole period, but rather amended, and thereby significantly narrowed, the circumstances in which parole could be granted once that period had expired. Nonetheless, the Applicant argued that ‘substantive operation and practical effect’ (at [13]) of the provision was to do just this. The Applicant also argued that the amendment increased the severity of the punishment because he effectively lost the opportunity to be released on parole
Regarding the first argument, the majority started by reiterating that prisoners have no right to be released on parole. Rather such a release functions as a “hope” for the prisoner thereby serving a rehabilitative function (at [16]). The non-parole period is a ‘”factum by reference to which the parole system” … will operate’ (at [16], quoting Crump at [60]). The court viewed the new provision as simply a change to that system, “altering” the “statutory consequence of the sentence” (at [19]). So, even though it was now virtually impossible for the Applicant to successfully apply for parole, he was still eligible to apply. The Court quoted Knight that:
[b]y making it more difficult for [the plaintiff] to obtain a parole order after the expiration of the minimum term, [the section] does nothing to contradict the minimum term that was fixed.
The majority then goes on to find that this reasoning is not affected by the fact that the legislation singled out the Applicant personally.
As to the increased severity, the Court focused on the fact that the the Applicant had received a life sentence and that he was still eligible for release on parole, but that the conditions upon which it would be granted had been constrained. The Majority observed that “[h]is punishment is no more severe; it remains a sentence of life imprisonment” (at [21]).
Essentially the Majority held that provided any legislation does not directly effect the non-parole period by extending it, and is not “more punitive or burdensome to liberty,” then legislative interventions of this kind will be valid despite the fact that it will make it impossible to obtain parole in all but the most limited circumstances.
(This post was originally posted on Amicus on 11 September 2019)
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