Baker v The Queen S240/2002 [2003] HCATrans 792 (20 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S240 of 2002

B e t w e e n -

ALLAN BAKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

KIRBY J

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 11.12 AM

Copyright in the High Court of Australia

MR P.R. ZAHRA, QC: May it please the Court, I appear for the applicant with my learned junior, MR A.P. COOK. (instructed by Armstrong Legal)

MR R.D. COGSWELL, SC: May it please the Court, I appear for the respondent. (instructed by Crown Solicitor for New South Wales)

MR P.J. BREEN: May it please the Court, I appear amicus curia, with the Court's permission, and I seek permission to sit at the Bar table.

GLEESON CJ: Your right to appear will be considered, Mr Breen, after we have heard what Mr Zahra and Mr Cogswell have to say. You can come and sit at the Bar table and after we have heard from Mr Zahra and Mr Cogswell we will see whether we will need to hear from you and whether, if we do, what time limit we will impose.

MR BREEN: Thank you, your Honour.

GLEESON CJ: Yes, Mr Zahra.

MR ZAHRA: Thank you, your Honour. The respondent to this application has emphasised what it submits are the differences between the legislation the subject of this application and that considered by this Court in Kable.

GLEESON CJ: Mr Zahra, there may be some misunderstanding about this, but at the bottom of page 3 on page 63 of the application book there is a statement that "The Sentencing Act 1989 has been repealed". Does that mean that the legislation with which we are concerned has been repealed?

MR ZAHRA: No, it is contained in that new Act.

GLEESON CJ: It is contained in the Crimes (Sentencing Procedure) Act which commenced operation on 3 April, is it?

MR ZAHRA: Yes.

KIRBY J: Let me get it entirely clear. The Act under which the challenged decision was made was under the old Act but the new Act continues the old Act or re-enacts it in similar terms?

MR ZAHRA: It re-enacts it in similar terms.

KIRBY J: So that the point of principle is still a live one under the new - - -

MR ZAHRA: Yes, new Act.

KIRBY J: Are they identical terms?

MR ZAHRA: Yes.

GLEESON CJ: Yes, go ahead.

MR ZAHRA: Thank you, your Honour. It is submitted that whether this legislation can be categorised as extraordinary legislation and as egregious as that considered in Kable is not the issue. The issue is whether the legislation exceeds the limit of Parliament's power because it imposes a function on the Supreme Court of New South Wales that is repugnant or incompatible with Chapter III of the Commonwealth Constitution. It is submitted that it is not necessary to show that the legislation here is as extraordinary in precisely the same way as that in the decision of Kable for the doctrine - - -

KIRBY J: Kable established a principle and, therefore, it is a question of whether this fits within that principle, but the points of distinction are said to include, one, that Kable really was a one-off piece of legislation and, two, that here a criterion or norm has been established by Parliament and, three, that the norm is a fairly standard norm with which courts and judges are familiar, namely, special grounds or special circumstances, so this is simply an orthodox application of the principle. You may not like the statute but it is nothing unusual, in that respect.

MR ZAHRA: It is submitted, your Honour, that the doctrine is applied if the legislation infringes the requirement of equal justice and the independent determination of the matter in a given case.

KIRBY J: But it is independently determined by the independent judge, according to a criterion, not an ad hoc instance of a particular person, and the criterion is not an unfamiliar one. I mean, special circumstances is quite a common provision. If you tap that into the computer, it would cough up an awful lot of cases of special circumstances.

MR ZAHRA: Yes, your Honour, but the particular characteristics of this legislation in combination are such that what we have is so far removed from what should otherwise be a normal sentencing process. According to principles well established by this Court in Veen [No 2] where in the exercise of judicial power in sentencing that the Court is left with resolving the tensions between the various purposes of sentence.

KIRBY J: Your best point on the merits seem to me to be that there was no basis, except the judge's general powers, to make the recommendation which he did, "Never to be released", and that therefore it depended very much on the reaction of particular judges. Some of a restrained or minimalist kind would never have said such things; others might be more inclined to say it on a number of occasions; and, therefore, that the premise on which you get the review is very much dependent on the individual judge who sentenced the prisoner. But the problem is, is that simply a complaint of the merits of the case, as distinct from the Kable principle which you seek to tender to the Court?

MR ZAHRA: No, your Honour. What is submitted is that the effect of the legislation and application is such that the reality is that, in fact, no determination can be made for this class of persons. The difficulty which was met in the Court of Criminal Appeal, for example, was to try and identify circumstances in which the criteria could be met in this, given circumstances of nine particular persons. I can take your Honour to the application - - -

GLEESON CJ: I have a more fundamental problem, Mr Zahra. I am not sure whether it touches on the validity of the legislation - may be it does not - but what are judges doing making recommendations to anybody? Judges do not make recommendations; they make orders.

KIRBY J: But it is not entirely unknown, is it, to say if a judge is to make recommendations in sentencing that a person be given medical treatment or be given custodial attention in a way - say if they have HIV - that deals with that issue? I mean, it is not unknown.

MR ZAHRA: Yes. Your Honour, that must still proceed on the basis that this is a judicial power, in effect, of sentencing.

GLEESON CJ: What is the legal status of a judge to say "please" to somebody?

MR ZAHRA: I am sorry, your Honour?

GLEESON CJ: What is the legal status of these recommendations, whether they are beneficial or adverse to the accused person, whether it is a recommendation that a person be given special care in prison or a recommendation that a person never be let out of prison? What is the legal basis for such an act on the part of a judge?

MR ZAHRA: There is no legal basis.

KIRBY J: In fact, there are decisions of the Court of Criminal Appeal of New South Wales which say that the judge sentences and what happens once the prisoner goes inside is a matter for the Executive Government. I forget the name of the cases but Sir Laurence Street said that on a number of occasions and possibly his distinguished successor, too. But it is not unknown for judges who have the knowledge of the full details to say something about matters of detail in the handling of the prisoner.

MR ZAHRA: Yes. Your Honour, just to further answer that question, if we go to the application book at page 76 at paragraph 55 of the Court of Criminal Appeal judgment, we can, in fact, see that there the court sought to reflect on some possible examples of how the special reasons might, in fact, be satisfied. One needs, obviously, to reflect on the status of these particular nine persons and one can see, in fact, that it is unlikely that any of these nine persons would fit the category of:

meritorious service to prison authorities or other prisoners or to the broader community -

It is important also that the court at paragraph 56 had indicated that rehabilitation, of its own, could not amount to "special reasons". So, in a sense, when one reflects on that, one can see how far removed it is from the judicial power to sentence. Now, prior to these amendments the authorities always considered that an exercise under section 13A was, in fact, a sentencing process, bar one exception, and that was that the court was required to take into account the post-sentence rehabilitation. So prior to this piece of legislation the applications under section 13A proceeded as an ordinary sentencing process.

GLEESON CJ: Where do we find in the application book the particular provision that you say is invalid?

MR ZAHRA: At page 60 at the bottom of the page, subsection (3A).

GLEESON CJ: It is section 13A(3A).

MR ZAHRA: Yes. In that section the person is not eligible for a determination unless the court:

is satisfied that special reasons exist that justify making the determination.

GLEESON CJ: So, that applies to what is by definition called a recommendation or an observation or an expression of opinion.

MR ZAHRA: Yes, but it proceeds on the basis that the court is exercising a judicial power of sentence.

GLEESON CJ: When it is expressing the opinion? I am just interested in what this legislation fastens upon. It fastens upon something that has occurred in the original sentencing process and the something is either a recommendation or an observation or an expression of opinion that the offender should never be released.

MR ZAHRA: Yes.

GLEESON CJ: Now, what I am intending to ask you is what is the legal basis upon which a sentencer might recommend or observe or express an opinion that an offender should never be released?

MR ZAHRA: There was no legal basis. Can I take your Honour to page 88 of the application book.

KIRBY J: In the event, does anything turn on that? Can you turn that to your advantage? On one view, the legislature is saying, "Whether or not a judge should have made an observation or recommendation, it is a legislative fact and, if it exists, to it we will attach in our full powers certain legal consequences".

MR ZAHRA: It is significant in our application because it manifests unequal justice in the way, in fact, these determinations or recommendations were made. Can I just take your Honours to page 88 of the application book at paragraph 101. This, in fact, summarises the particular aspects of the arbitrary nature of the recommendation and, in fact, at paragraph 102 the court accepts the arguments that were put about the manifestation of that inequality of justice. Paragraph 101 refer to my submissions:

that the qualification for the category of those subject to the non-release recommendations was based upon an arbitrary decision by a sentencing judge to describe the offender as not being suitable for future release.

KIRBY J: The answer to that is "So what?" It is a legislative fact to which the Parliament of New South Wales, which has, subject to the federal Constitution, full powers here, has attached a consequence.

MR ZAHRA: That is one aspect. Secondly, your Honour, as I argued before the Court of Criminal Appeal, that this was a categorisation that did not have the force of law. It did not form part of the sentencing process at the time and no appeal lay against it. Further, I had submitted:

that it is apparent from the parliamentary debate on the subject that the impetus behind the Amending Act was the determination by McInerney J of a minimum term and an additional term in regard to the sentence imposed on Crump.

Finally, as paragraph 101 indicates, that I had argued:

that the categorisation has not been applied evenly by the Supreme Court judges . . . a significant number of offenders sentenced before January 1990, whose criminality equals or exceeds that of the appellant, avoided such a recommendation being made due to the sentencing approach of the judge concerned.

Now, interestingly, in the next paragraph, the court accepts those arguments in the sense that they were not challenged. Mr Justice Ipp at 102 says:

I accept that the qualification for the category of those subject to the non-release recommendations is based upon a statement made arbitrarily by a sentencing judge (in the sense that the judge was not bound to make such a statement and the statement, when made, did not have the force of law). It is correct that such a statement did not form part of the sentencing process at the time and no appeal lay against it. I accept that the criteria in question may lead to uneven consequences. I also accept that the decision of McInerney J played a large part in Parliament deciding to enact the Amending Act. It is correct that there has been inconsistency in the making of non-release recommendations.

Now, all those factors combined that we say make this legislation repugnant. In the written submissions in the schedule we refer in relation to that factor of unequal justice to the Anita Cobby Case where, in fact, there were five persons convicted of that murder. One received a retrial. In relation to the first trial, there was a non-release recommendation made for all five. At the subsequent trial of one of the persons convicted he was then convicted, however, no non-release recommendation was made. So the situation that applies in that particular case which highlights the unequal justice is that one of them can apply after eight years and the others, as the legislation is now presently framed, must wait 30 years.

KIRBY J: But this all seems to be merits arguments as distinct from validity arguments.

MR ZAHRA: Your Honour, it is submitted on the continuum, as in fact your Honour said in Nicholas, that the serving of judicial power by the legislature may be established by legislation less extreme than that considered in Kable.

KIRBY J: Justice McHugh and I were dissenting in Nicholas.

MR ZAHRA: Yes, but your Honour said in such cases regard has typically been had to the indicia of invalidity which are themselves expressed in very broad terms.

GLEESON CJ: Would it be beyond the legislative power of the New South Wales Parliament - and I am not inquiring whether it would be wise of the New South Wales Parliament, but would it be beyond the power of the Parliament to enact a law saying, "In the case of any person sentenced in respect of whom the sentencing judge has made a recommendation that he or she never be released, that person shall never be eligible to apply for parole"?

MR ZAHRA: Your Honour, it goes without saying that we say that obviously the lesser standard is such that it makes the legislation invalid but what your Honour says - - -

GLEESON CJ: What is the source of the invalidity? Why is it beyond the power of Parliament to do that?

MR ZAHRA: Because, in a sense, the court would become an arm of the legislature.

GLEESON CJ: The court is not coming into it. I must have misled you.

MR ZAHRA: I misunderstood your Honour's question.

GLEESON CJ: I am not talking about anything to do with an application to the - - -

MR ZAHRA: No, your Honour is essentially referring to a circumstance similar to a bill of attainder and if the - - -

GLEESON CJ: You can characterise it as you like, but what I want to ask is, why is it beyond the power of the New South Wales Parliament to enact a law that simply says people who are on the wrong end of these recommendations may never apply for parole?

MR ZAHRA: Yes, I am sorry, I misunderstood your Honour's question. No, your Honour, there would be no limitation on the legislature when doing that.

GLEESON CJ: So, while the legislature has power to do that, it lacks the power to do the lesser thing, which is to say if such a person applies for parole, the body to whom the application is made, if it is a court, must take account of the recommendation and will only depart from it in special circumstances.

MR ZAHRA: Your Honour, I submit it is not a lesser thing in the sense that what the legislature is doing is, in fact, making the courts part of their legislative intent and it is that process which undermines public confidence in the impartiality of the judiciary that ordinary persons might reasonably have seen the Act as making the Supreme Court a party to and responsible for implementing the political decisions of the Executive Government. That is the ill.

GLEESON CJ: That is the Kable point.

MR ZAHRA: Yes. That is the ill. I would submit it certainly is that fact that - - -

KIRBY J: The parliamentary decision rests upon a legislative fact, namely, the recommendation of a judge. You say that that is such an unstable foundation because it very much depended on the view that that particular judge had of whether a judge should make a recommendation at all - - -

MR ZAHRA: Yes, which had no force.

KIRBY J: - - - and it depends upon so many chance factors that it is a semi-arbitrary basis upon which to rest the legislative consequence which has very great potential significance for the liberty of the individual.

MR ZAHRA: Yes, your Honour. It manifests here in unequal justice.

KIRBY J: It sounds very much like a merits - I mean, I can well understand your objection to the legislation in terms of fairness and justice and all those things, but whether it goes to the validity of it, that is the issue, because the formulae used is not the same as Kable. It is a norm, special circumstances, special reasons.

MR ZAHRA: No, it does not fit exactly within Kable but nor does it need to be, but what is submitted that if one takes into account the particular characteristics that we have further referred to in the written submissions, that it is the combination of all of those circumstances that, in fact, make this legislation repugnant, but the arbitrary nature, the unequal justice is the significant component of that and, obviously, the difficulty that the court is now placed in in finding special reasons, if, obviously, the interpretation of the Court of Criminal Appeal is to be the interpretation of the special reasons, that they largely could not be met.

GLEESON CJ: Thank you. Yes, Mr Cogswell.

MR COGSWELL: Your Honours, the process or the legislation in Kable was described in terms such as being the antithesis of judicial method, repugnant to the judicial process, no other process known to the law. That stands in stark contrast, in our submission, to the very ordinary, normal process which the legislature has asked or directed the Court to engage in in this legislation. The provision under challenge is subsection (3A) which is the eligibility provision. It provides:

A person . . . is not eligible . . . unless the Supreme Court, when considering the person's application under this section, is satisfied that special reasons exist that justify making the determination.

As his Honour Acting Justice Ipp said in the Court of Criminal Appeal, his Honour was able to envisage a number of kinds of factors or circumstances which could amount to special reasons. His Honour sets them out at page 76 of the application book. His Honour, in fact, also - and it is a point which I think Justice Kirby made - refers to a passage from the judgment of Chief Justice Spigelman in a case called Simpson over 75 to 80 of the application book where his Honour Justice Ipp quotes Chief Justice Spigelman:

The words `special circumstances' -

slightly different -

appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings.

So that for the reasons which we have set out in our written submissions, your Honours, the provisions of this legislation are so far removed from the provisions of the Kable legislation that they nowhere near approach - - -

KIRBY J: They are removed. There is no doubt about that and the criteria are normative, although they are very, very general.

MR COGSWELL: That is right.

KIRBY J: What is said to attract Kable, as I understand it, is that first the number of people involved is finite, limited and few, and that picks up some observations that were made in Nicholas, and second, that the foundation is extremely arbitrary because you and I both know - Justice Cantor, for example, I do not believe would ever have made a recommendation. Justice Taylor probably made them on a number of occasions and, therefore, you are attaching very grave consequences to the liberty of the citizen on a very arbitrary and personal feature which is not a legal feature. It is not something which the law clothed the judge with the power to make. It was just something which the judge was so upset at the time that he felt he was entitled to make. That is a very arbitrary foundation in the case of very few numbers to which the Parliament of New South Wales has attached very great consequences for liberty. That is what is said to attract the constitutional argument.

MR COGSWELL: Your Honour, can I make a number of responses. First, can I just focus on "the judge was so upset at the time". In my submission, your Honour, it is fair to assume that judges gave serious determination and consideration before making such a recommendation.

KIRBY J: Of course, they did, but there are some judges who would never do it - never, ever.

MR COGSWELL: Precisely. I accept that, your Honour.

KIRBY J: They would not think it is their business and in a legal sense, it is not their business.

MR COGSWELL: I accept what your Honour says. I accept what your Honour said in the first place, but it is important to emphasise that it would be a considered recommendation. The judges who were more likely to make such a recommendation than other judges would not make it, one would assume, without giving the matter some consideration. Even those judges would not make the recommendation in a number of instances.

The second point, your Honour, is one which concerns the arbitrary nature of it and it is a question which is dealt with by Justice Ipp. It is described as arbitrary but, in my submission, it is not very arbitrary or extremely arbitrary because, in fact, it focuses on the degree of seriousness of heinousness of the particular crime, so it is not as if the legislature has engaged in a process of some sort of lottery or random selection. It, in fact, does latch on to a criterion which is relevant and, as Justice Ipp said at 89:

It is to be borne in mind, however, that the persons the subject of a non-release recommendations are all persons who committed crimes of the most serious nature and who, at the time of sentencing, constituted a real and serious danger to the safety of the community . . . in respect of whom the sentencing judge in each case was moved to make a non-release recommendation.

So that although it has been characterised as arbitrary, in my submission, your Honour, that is an unfair characterisation.

KIRBY J: It is arbitrary in the sense that it very much depended on the personal inclination of a particular judge to stray into what the Court of Criminal Appeal of New South Wales has said is the business of the Executive Government and to make a recommendation which has now, by subsequent legislation, very serious parliamentary consequences for the prisoner.

MR COGSWELL: There are two things there, your Honour. The second point about the parliamentary consequences, or rather legislative consequences, the Parliament was entitled to select - as Justice Ipp says, there is no authority or, rather, no principle that prevents Parliament from identifying some factor such as that, so that Parliament is entitled to select something which Parliament considers relevant and, for the reasons that I advanced before, it is not completely arbitrary. The first point your Honour made about the trial judge straying into areas which occupied or should be the subject of the Executive - - -

KIRBY J: I was just picking up on the points made by the Chief Justice which reflect repeated authority of the Court of Criminal Appeal in New South Wales.

MR COGSWELL: Yes. Often, my recollection is, in the context of the role that the Court of Criminal Appeal may have to play in a prisoner who is subject to some illness or condition in prison - - -

KIRBY J: Yes, the court could be asked to order that the person go to a minimum security prison or something and the Court of Criminal Appeal repeatedly said, "That is not our business".

MR COGSWELL: "That is not our business. It is the business of the Executive."

KIRBY J: The court's business finishes at the point that the person goes from the court to prison.

MR COGSWELL: Precisely.

KIRBY J: After that, it is the Executive Government's responsibility.

MR COGSWELL: Exactly. Now, that point, your Honour, is different to - and there is no legislative basis or basis for it. As the Chief Justice said, judges delivery judgments and give orders, but that is different from a judge making a recommendation and that probably happens day in, day out in the courts, particularly in sentencing matters, where a counsel for an offender may well ask the judge for a recommendation that their client serve their period of custody in a particular institution rather than another institution.

KIRBY J: The question for us is whether a recommendation "Never to be released", which is the most draconian, if it has legal effect, punishment that our law envisages. By subsequent legislation it now picks up and has very large parliamentary consequences, whether there is such a flaw as invites the attention of this Court to whether that is valid. We are not here arguing the appeal. We are dealing with whether they get in the gateway to have the matter determined.

Now, I do not know whether it is a relevant factor but recently in a case from Western Australia the Court granted special leave in a matter concerning the Proceeds of Crime Act legislation of that State on a Kable point and whether, if we are going to look at Kable, there could be utility, as there sometimes is, in having a case with other issues that, as is were, presents another application or suggested application of Kable.

MR COGSWELL: In my submission, your Honour, this case would not be a useful accompaniment to the other case, because it is so far removed from Kable, because, as your Honour says, it provides for a norm or a clear criterion by which the court can act and taking your Honour's point about the arbitrariness, Parliament has had power to latch upon, if it wanted to, a particular circumstance and, as your Honour said, turn it into a legislative fact.

That choice, in this case, was not arbitrary. For that reason, this case would not be, in my submission, a good vehicle for testing the Kable principle relating to the arbitrariness of the legislative fact which Parliament fixed on in this case.

KIRBY J: I suppose judges throughout the country have made recommendations over the years of this kind and therefore the issue is not one that would be necessarily ultimately limited to New South Wales.

MR COGSWELL: Yes.

KIRBY J: Are there any other laws like this elsewhere in the country or not?

MR COGSWELL: Not that I am aware of, your Honour. Your Honours, for those reasons, there is probably little that I can add. We rely upon the written submissions.

GLEESON CJ: Thank you, Mr Cogswell. Mr Breen, we will hear you but we will not hear you repeat anything that has already been said to us and we will give you 10 minutes to say what you want to say.

MR BREEN: Yes. Your Honour, thank you for the opportunity to say something about the appeal. I do so knowing the Court's procedures in relation to amicus curiae applications and it would normally be the case, I think, that it would be further down the track that you would be hearing an application of this kind. I believe, your Honour, that the sentencing law is so complex that it does require someone, certainly with more experience than I have, and the opportunity - - -

KIRBY J: Who are you speaking for today and how are they affected by the principle?

MR BREEN: Thank you, your Honour. I am speaking for one of the 10 prisoners who are affected by this legislation. His name is Bronson Blessington and he was 14 years old when he was convicted of abduction, rape and murder - 14 years old when he committed the offence and 16 when he was convicted. He was convicted prior to the new sentencing regime which came into force in January 1990 which says that life means life. There is a mandatory life provision which now exists in the sentencing legislation.

KIRBY J: Prima facie, therefore, he was entitled to redetermination but the trial judge, or sentencing judge, recommended "Never to be released", did he?

MR BREEN: That is correct.

KIRBY J: Who was the sentencing judge in that case?

MR BREEN: The sentencing judge was Justice Newman.

GLEESON CJ: I thought that recommendation was set aside by the Court of Criminal Appeal.

MR BREEN: Your Honour, as the Chief Judge in the Court of Criminal Appeal, made certain observations about the recommendation but, as far as I am aware, it was not actually set aside.

GLEESON CJ: I thought what I pointed out was that there was no legal basis for it.

MR BREEN: The question then is, does that amount to a judicial review of those words "Never to be released", or was that simply a further observation by the Court of Appeal? The problem is that these words "Never to be released" are not part of the sentence; they are simply observations by the trial judge and, in your Honour's case, the Court of Appeal, that these words have a certain effect. The legislature has picked up these words and turned them into statutory law. I believe that it is such a fundamental intrusion into the rights of these prisoners, in other words, being, in effect, sentenced in hindsight, that it does raise the question of the extent to which the Parliament has the power to make laws of this kind.

They are fundamental questions about the Diceyan principles of parliamentary supremacy. Is it possible for the Parliament to pass a law to say all blue-eyed children should be killed? This law is as bad as that and Dicey himself said that it was not appropriate for the Parliament to pass that type of law.

KIRBY J: It may not be appropriate but the question is, is it valid, because New South Wales I think talk of supremacy in Australia is misguided because it is all within the Constitution. It has to be subject to the Constitution. So, the issue is whether, although it had no legal effect at the time, and observations were made upon it in the Court of Criminal Appeal, subsequently, retrospectively, the New South Wales Parliament is entitled to pick it up as a fact and attach these consequences to it, or whether Chapter III prevents that. That is the issue.

MR BREEN: Yes, that is so, your Honour. That is the issue. If I were granted the leave of the Court to appear amicus curiae, I would seek to brief counsel and to have an argument developed along the lines that the Constitution does, in fact, include limits on the law-making power of the State Parliaments. There was a law drawn under the powers in 1986 by the passing of the Australia Act and the submission that I would seek to make is that the Bill of Rights 1689, for example, which is still part of our inherited law, has a provision for cruel and unusual punishment.

That provision has never been overridden by contrary law and the question that I would seek to put to the Court is whether the 1986 Australia Act in effect amounted to drawing a line under the ability of the Parliament to make such a law. In addition, this particular prisoner, Blessington, who was just 14 years old when he committed these offences, has the benefit of certain international treaties. He has the benefit of the Convention on the Rights of the Child and prior to that the Declaration of the Rights of the Child in 1959.

There are provisions in these treaties which ought to be taken into account by an administrative decision-maker in relation to these prisoners. The argument that I would seek to put, through counsel, is that the administrative powers of the Parole Board in effect amount to those of an administrative decision-maker and an administrative decision-maker must take into account, according to the Teoh principle, international covenants and treaties to which Australia is a party.

Now, the Convention on the Rights of the Child is a treaty that Australia is a party to. It has been a party to it since 1990 and the provisions of that treaty would preclude the Parole Board making a determination which in effect is a life sentence for this boy.

KIRBY J: Has your client made application for special circumstances to be applied in his case or not?

MR BREEN: He has applied for a redetermination of his life sentence and the application has been in abeyance for almost seven years because of the constant introduction by the Parliament of further provisions to try and, in Mr Carr's words, "cement in" these 10 prisoners and so his application has not been dealt with but it is still a current application in the Supreme Court and it is an application to redetermine his life sentence. In the course of that application, these questions about the Convention on the Rights of the Child will be argued before the court.

KIRBY J: That might be where those issues arise, if anywhere, but the issue is whether the legislation that gives rise to it is constitutionally valid under the federal Constitution and we have for the other applicant a serious argument that has been put before us. Is there anything that you have to add to that argument?

MR BREEN: The only other thing that I would like to add is that the Crimes Legislation Amendment (Existing Life Sentences) Act which is the relevant Act that converts this term of imprisonment into, in effect, a life term is a law that if this person, Blessington, were sentenced today he could not be subjected to a life sentence because the mandatory life provision that now exists under the sentencing legislation specifically provides that it does not apply to a person who was under 18 at the time of commission of the offence.

GLEESON CJ: That sounds life a special reason within the meaning of subsection (3A). I presume you are going to rely on it, as such.

MR BREEN: Yes, your Honour, but he cannot apply until 30 years have passed, if this legislation stands. In addition, the Parole Board cannot release him until he is incapacitated, crippled or dying, to the point where he is no longer a threat to the community. So, even if it is true that he should not be the subject of this mandatory life sentence, he cannot get his case before the court until this question of the impact of this legislation is decided, and decided by this Court. If your Honours see fit to allow me to appear amicus curiae, I will brief counsel and - - -

GLEESON CJ: That is a question that will be decided if we were to grant special leave.

MR BREEN: Yes. Thank you, your Honour.

GLEESON CJ: Yes, Mr Zahra.

MR ZAHRA: Thank you, your Honour. Mr Breen's submissions in relation to the particular difficulty of Mr Blessington are highlighted by the fact of an annexure to the affidavit that he, I understand, has filed. Annexure C in fact is a letter from the Court of Criminal Appeal in relation to Mr Blessington's application. It indicates firstly in relation to the factor of whether an appeal lies against the decision of the "Never to be released" recommendation, it refers to your Honour the Chief Justice's remarks in the Court of Criminal Appeal. The note indicates:

However, in dismissing your appeal, the Court did not make any order removing that recommendation (in fact, comment was made as to whether there was any statutory basis for appealing against the recommendation).

The last paragraph of that letter refers to the first date in fact that Mr Blessington can ventilate any issue before any court and that is, at that time, 9 September 2008, but the legislation has been subsequently amended to provide for 30 years rather than 20 years before an application is made. So, in that last paragraph that Mr Blessington's case cannot properly come before a court unless this Court were to consider the merits of this legislation until 9 September 2018.

KIRBY J: Merits by which you mean constitutional merits.

MR ZAHRA: Yes. That highlights, as we have in our written submissions, the difference in the Cobby Case where, in fact, because of the retrial of one of the offenders where no recommendation was made that that person can apply after eight years but the others must wait 30 years before they can, in fact, even argue whether there are special reasons for an application.

The last aspect is in relation to the issue of whether ordinary, reasonable members of the public might reasonably have seen the Act as making the Supreme Court a party to and responsible for implementing the political decision of Executive Government, that the written submissions have extracted two of the reading speeches and when one reads those and understands the sequence of this particular legislation being enacted one gets a very clear understanding of the complexion and the desire of the legislature in relation to this specific group.

KIRBY J: You are referring to the fact that the Minister responsible for the legislation referred to your client and the others as "animals"?

MR ZAHRA: Yes. There are, in fact, a number of references there:

these animals and the security of knowing they will never again be free.

KIRBY J: Yes. They were in your written submissions which - - -

MR ZAHRA: Yes. Both the reading speeches in the Legislative Assembly and the Legislative Council were extracted in the written submissions and they are in the application book at page 98. So, the ultimate submission is also that when one reads that one gets the clear complexion of the desire of the legislature to make the Supreme Court a party to and responsible for implementing the political decision of the Executive Government.

GLEESON CJ: Yes, thank you. We will adjourn for a short time to consider the course we will take in this matter.

AT 11.56 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.01 PM:

GLEESON CJ: In this matter, there will be a grant of special leave to appeal. Mr Breen, your application, if you wish to make one, will have to be made to the Full Court at the time the matter is listed.

MR BREEN: Yes, your Honour.

GLEESON CJ: We will adjourn for a short time to reconstitute.

AT 12.01 PM THE MATTER WAS CONCLUDED