Crump v State of New South Wales & Anor [2012] HCATrans 81 (27 March 2012)

Last Updated: 27 March 2012

[2012] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S165 of 2011

B e t w e e n -

KEVIN GARRY CRUMP

Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

NEW SOUTH WALES STATE PAROLE AUTHORITY

Second Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 27 MARCH 2012, AT 10.16 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR G.E.S. NG, for the plaintiff. (instructed by Legal Aid NSW)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MS N.J. ADAMS and MS A.M. MITCHELMORE, for the first defendant. (instructed by Crown Solicitor (NSW))

MR S.J. GAGELER, SC, Solicitor-General for the Commonwealth of Australia: If the Court pleases, I appear with MS K.C. MORGAN for the Attorney-General of the Commonwealth intervening in the interest of the first defendant. (instructed by Australian Government Solicitor)

MR W. SOFRONOFF, QC, Solicitor-General for the State of Queensland: May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, intervening on behalf of the Attorney-General for the State of Queensland. (instructed by Crown Law (Qld))

MR S.G.E. McLEISH, SC, Solicitor-General for the State of Victoria: If it please the Court, I appear with my learned friend, MS E.A. BENNETT, for the Attorney-General for Victoria intervening. (instructed by Victorian Government Solicitor)

MR R.M. MITCHELL, SC: May it please the Court, with my learned friend, MR C.S. BYDDER, I appear for the Attorney-General for Western Australia intervening in support of the first defendant. (instructed by State Solicitor (WA))

MR M.G. EVANS, QC: May it please the Court, I appear with MR A.J. KEANE for the Attorney-General of South Australia intervening. (instructed by Crown Solicitor (SA))

FRENCH CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, when, in 1990, under the label of “truth in sentencing”, changes were made to the provision for life sentences for the offence of murder, among others, there was an important question to be dealt with concerning what came to be known as existing life sentences. Our client, as your Honours know, was sentenced on 20 June 1974. In the book of legislation at page 6 is found the familiar provision under which he was sentenced. Section 19 of the Crimes Act, as it then stood, provided for what was known in shorthand as mandatory life. It provided that:

Whosever commits the crime of murder shall be liable to penal servitude for life –

and in the next sentence disapplied section 442 which provides for lesser sentences to be passed than that prescribed from that position. So that our client was subject to that mandatory life which notoriously was subject to the possibility by executive decision – I stress, executive decision – of release on licence, a system formerly known as “ticket of leave” with which this Court is very familiar from Baker.

The reforms introduced the provision that you see at page 10 of the statute book which begins the setting in which we seek to make good the propositions in paragraphs 1 to 4 of our outline of oral submissions, that is, the effect in the system created by these reforms, somewhat piecemeal but also to a degree schematically, under which critically the judicial power of the State came to be exercised with respect to that existing life sentence. I stress the legislation made the legislative choice that judges would make judicial decisions about the future fate of people serving mandatory life sentences.

GUMMOW J: What do you mean by “future fate”?

MR WALKER: I mean whether they might be released or not. It could have been, indeed the possibility was preserved that a purely executive decision would be not only available but could have been uniquely available, but the legislative choice made was to involve the judicial power. The first step towards that was that for the future, section 19A would apply in the case of murder, one of the offences for which our client was sentenced:

liable to penal servitude for life -

and under subsection (2) – this is page 10 of the statute book – that would mean life. That is one of the central propositions, legal propositions, for the political statement “truth in sentencing”. Under subsection (3), however, the position formerly obtaining was reversed whereas formerly, the sentencing upon conviction for murder was very short, summary, virtually pre-emptory, now it would be a sentencing at least as elaborate as any that one might see because under subsection (3) there was the possibility, by reason of the applied operation of section 442, of the passing of a lesser sentence than penal servitude for life. Subsection (6) is one of the provisions – I will not notice all of them – which preserves the parallel – perhaps one might think divergent – operation of the prerogative of mercy.

Other parts of the scheme involved what to do, therefore, with those existing life sentences. May I take your Honours in the statute book to page 16? The Sentencing Act 1989 dealt with this in provisions commencing, and mostly involving, section 13A. The form in which you have it on these pages has been slightly altered from the original form by the provisions - if I can ask your Honours to glance at page 17 - of subsections (8) through (8C) which were discussed in some detail by Justice McInerney in the decision that is the object of the section 154A, with which we are concerned.

Under section 13A one sees that persons in the category of my client, who were, by definition, a closed class, “existing life sentences”:

may apply to the Supreme Court for the determination of a minimum term and an additional term –

Alas, those were expressions which are later altered, but I draw to attention that that was how they were originally coined, “minimum term” and “additional term”. At that stage, under subsection (3), for persons in our client’s position, I stress at that stage, there had to be service of at least eight years. Later, as you will see, that was increased for the subset to which our client belongs, to 20 years.

Under subsection (6) the nature of that which is being enacted here emerges clearly. There is, in effect, my word, not the Parliament’s, a resentencing, a substitution by this judicial determination of its outcome for that which had been, under section 19 back in 1974, the mandatory life.

I draw to attention without dwelling on them at the moment, the scheme amended by dint of the present form you see there on pages 16 and 17 of subsections (8) through (8C) whereby there could be, in effect, among other things, a determination that life should mean life. See, in particular, subsection (8A).

Under subsection (9), one sees in this resentencing occasion for those who have existing life sentences, that there were mandatory considerations for the Supreme Court including the much criticised phrasing of paragraph (a) of subsection (9) which includes, relevantly, the possibility of release on licence to which I have already referred. Under paragraph (c) of subsection (9) one sees, not uniquely, a reference to what are called there “relevant comments” made by the original sentencing court when imposing the sentence.

I digress to remind your Honours that the relevant comments made by the original sentencing court in our client’s case included what has become in later provisions known as the non-release recommendation which has triggered certain consequences for our client.

FRENCH CJ: It is common ground that those remarks have that statutory consequence.

MR WALKER: Yes. Whatever argument there may have been it is common ground. Could I then remind your Honours that on page 18 this judicial involvement which determined the sentence to substitute for the original sentence was one which would then take its place as the final word on sentencing subject only to the tradition, orthodox or unexceptionable qualification to finality, namely appeal within the judicial hierarchy, a hierarchy obviously which in this Court would include either directly by special leave to this Court, if there were no intermediate court, and obviously to the Court of Criminal Appeal and thence by special leave to this Court, see section 13A(12).

I draw to attention that so far as the Crown was concerned the importation of an application of the relevant provisions of the Criminal Appeal Act 1912 that one sees at the foot of section 13A(12) meant according to section 5D of that latter Act that the Crown would have a right of appeal in relation to a decision to redetermine or to redetermine in a particular manner.

Now, the division of the sentence into minimum and additional had meaning because of the possibility – I stress, possibility – that would arise at and not before the minimum term had expired and in order to understand how that operated at the time when Justice McInerney came in 1997 to consider our client’s application, can I take your Honours in the statute book to page 20. The Sentencing Act 1989 as it then stood said in section 14 that:

Prisoners may be released on parole in accordance with this Act –

and then one sees that which produced the effect of Justice McInerney’s decision. One sees in subsection (2)(a) and (b) that it was the subjection to a sentence of imprisonment that has a minimum term, and the service of that minimum term which would produce the eligibility under section 14.

GUMMOW J: When did the Board become the authority?

MR WALKER: Can I give you the exact date in a moment, your Honours. It was after this, obviously, but it was by the time of the later legislation. I am sorry, your Honours, I will get that exact date for you.

GUMMOW J: Has the Authority submitted in this action?

MR WALKER: Yes, your Honour. Could I then take your Honours on page 24 to Subdivision 3, which applies by dint of a definition in section 3 to our client as a serious offender? I will not go in detail to the provisions. Can I note that the painstaking steps of procedure by the then Board includes the hearing of persons interested to resist, including notice to victims and the like.

FRENCH CJ: So the decision by Justice McInerney established eligibility for release on parole which was then – the question of release on parole then being in the hands of an executive or administrative authority to wit the Parole Authority – and 154A put constraints on what they could do for this class of offender.

MR WALKER: Yes. That is the difference that our contentions present from, on our reading of the cases, any of the situations that have presented hitherto because if there be – to use the expressions from America and noted by Dr Gerangelos in the article drawn to attention by the Court – if one considers the direction principle here, plainly there is no direction to a judicial body in relation to how to dispose of a parole decision.

That is plain, and we do not say that the quasi-judicial nature of the Parole Board’s procedures and determination in any way produces assimilation of a direction to an executive body, and an impermissible direction, I stress, to a judicial body. Rather, it is the effect on the antecedent and fundamental judicial decision which is Justice McInerney’s, subject to an appeal which was not availed of by the Crown which, in our submission, shows that the direction, albeit to an executive body, has deprived that judicial act of one of its defining and essential characteristics, namely finality and determination of the issue before the Court. Could I take your Honours then forward to the - - -

FRENCH CJ: The issue before the Court, can that be encapsulated in the word “eligibility” or is it something more than that?

MR WALKER: We have used, as your Honours may see, the word “prospect”.

FRENCH CJ: I am looking at the statutory term.

MR WALKER: Yes. It is more than eligibility because it is an eligibility to be considered in a manner that I hope, relatively briefly, to show in the statute goes to questions of merit in relation to a decision to release. Section 154A comes over the top of that determination of merit or that consideration of merit and applies because of the court order that provides the eligibility and with it the prospect of release.

KIEFEL J: The court order strictly does not apply – provide the eligibility. Section 14 does.

MR WALKER: Quite so.

KIEFEL J: The court order provides a qualification because it determines a minimum term.

MR WALKER: Quite so and I think we have made that crystal clear in our written submissions. The court order is artificial, all of this is artificial, in a sense, by this notion of dividing sentencing to minimum and additional terms. It turns out that understanding the scheme as it is applied in its various guises over the years, that has always meant and only meant, that the expiry of the minimum term is the juncture at which something may happen in terms of release.

Now, the something that may happen has now become known as parole and minimum term, as your Honours know, is now redubbed “non-parole period”, that is a period during which you are not eligible to be considered for parole.

HAYNE J: You spoke of that as artificial. What is artificial?

MR WALKER: By that I mean that it is all the creation of statute. There is no pre-existing antecedent or other matter that predated the decision of Justice McInerney in relation to a minimum term. It created that which has meaning only because of the provisions in question. The provisions in question designedly and continue designedly to involve the judiciary. They involve the judiciary in several guises.

So far we have come only to the one – to the two, I should say, involved in the original decision, like Justice McInerney’s in this case, to redetermine. The second is the possibility of appeals, first to the Court of Criminal Appeal and then by special leave to this Court from that such a decision, a possibility that existed when Justice McInerney ruled and which was not availed of by the State.

The Parole Authority became the name and the body in place of the Board by commencement on 10 October 2005 of Schedule 1 to the Crimes (Administration of Sentences) Amendment (Parole) Act 2004 (NSW).

GUMMOW J: What is the number of the Act?

MR WALKER: Act 94 of 2004, your Honour. Eligibility continues to be the phrase used at the relevant time. If I can take you now to the Crimes (Administration of Sentences) Act 1999, Part 6, which relevantly starts at page 37 of the statute book one will see -I do not need to take you to it - our client’s minimum term is treated as a non-parole period by reason of clause 19 of Schedule 2, which I do not need to take you to, as noted in our written submissions, paragraph 24.

Now, these amendments continue, as I say, the eligibility notion, page 37, now section 126, and in substance, though rephrased, the eligibility is now conditioned upon being subject to a sentence for which a non-parole period has been set and by the deeming, to which I have referred, that fitted our client, and then service of that non-parole period.

Could I come to what I will call the matter of merit or substance in relation to the executive consideration, that is the Parole Board’s, now Parole Authority’s consideration of matters, page 39, which under section 134 applies to a sentence of more than three years and thus to persons in the position of our client. Under section 135 one sees that what the Board is going to consider is whether:

release of the offender is appropriate, having regard to the principle that the public interest is of primary importance.

Under paragraph (2)(a) of the section:

any relevant comments made by the sentencing court –

is the first of the mandatory considerations and others, which are in the nature of things relatively obvious, including the catch-all in paragraph (j). Over the page on page 41 of the book in application of Subdivision 3 to special offenders, catching our client, section 3, see footnote 9 of our written submissions, the notion of preliminary consideration is introduced at intervals which may alter by dint of certain circumstances I will not dwell on in section 143.

One sees again the schema of notifying possible adversaries, starting in, but not confined to, section 145. The decision provision is section 149. Section 153 on page 46 of the book, formally and clearly gives an interest to the State, including in making submissions. Section 154, this of course is before the insertion of the critical 154A, required not merely regard – see paragraph (2)(a) – but also the giving of:

substantial weight to any relevant recommendations, observations and comments made by the sentencing court –

and gave, by paragraphs (b) and (c), direction that there be explicit explanation of acting inconsistently. In the closing words of section 154(2) required, in particular, as it says the Board to:

have regard to the need to preserve the safety of the community.

FRENCH CJ: Now, is the sentencing court the original sentencing court? Does the decision by Justice McInerney fall within that category, it being a resentencing, as you pointed out?

MR WALKER: Yes, it would, your Honour. Those remarks of Justice McInerney, of course, contain also the remarks of Mr Justice Taylor. Now, that does not make them Justice McInerney’s remarks.

BELL J: But the reference in 154(2)(a) to the “sentencing court” is to the court that imposed the original sentence, is it not?

MR WALKER: It would be difficult to see what policy would leave that our, your Honour. In the definition section, the sentencing court in relation to an offender undergoing a penalty imposed by a court – I am sorry, your Honours, I am going to disappoint, this is one of those completely unnecessary definitions – means the court by which the penalty was imposed. So you go round and round and in this case the penalty was imposed upon the redetermination because there had been an original life sentence, an existing life sentence.

It is for those reasons that it would be difficult, I must concede, to read these provisions as requiring Mr Justice Taylor’s remarks to be, as it were, expunged from the relevant history. Now, there are a number of ways to approach that. One of them, of course, is that it is difficult to see why that would not be, in the nature of things, something that the Parole Board would consider relevant.

HAYNE J: But the more fundamental reason surely, Mr Walker, is that the sentence this man is serving is the sentence of life imprisonment originally imposed, is it not?

MR WALKER: Probably not, your Honour.

HAYNE J: No?

MR WALKER: He is serving a sentence because of the original life sentence imposed but the determination of minimum term and additional term substitutes for that original sentence. Your Honour, that is not a complete disagreement with the proposition your Honour has put to me but it is a significant difference. What I accept, I think by way of concession, is that the provision for redetermination does not remove, indeed cannot given its origin, does not remove the significance of the original sentence. The original sentence informs, for the existing life sentence, informs what happens upon the redetermination if there is a decision to redetermine.

Under sections 155, foot of 46, and 156, the top of 47, you see that there are again provisions for appeal. They have been changed in substance. It is now restricted if it be, as we submit, a restriction to contentions based on the idea of there having been false, misleading or irrelevant information before the Board.

What happens in the Court of Criminal Appeal if such an appeal is successful is that what is called a direction is given to the Parole Board as to whether the information was “false, misleading or irrelevant”, together with such directions as the Court of Criminal Appeal thinks fit with respect to what is called the information.

GUMMOW J: It is not an appeal.

MR WALKER: It is certainly a very special form of appeal if it attracts that expression at all. On the other hand, it is the engagement of the judicial power, with respect, and exercised by the Supreme Court.

BELL J: This is the engagement of the judicial power in the limited respect provided in relation to the administrative decision of the Parole Authority.

MR WALKER: Quite so. That is not one that I am concerned with.

BELL J: Indeed.

MR WALKER: I think I counted three, this is the third, and it is not our concern, however, it is another example of a legislation choosing to involve the judiciary. A statute which effectively directed the Court of Criminal Appeal how it went about its job under sections 155 or 156 would be a candidate for consideration of its validity if it stepped over the mark in relation to an interference with the independent exercise by the court of its directions power under those provisions.

Could I, just for completeness, in order to remind your Honours of the situation as it became, pages 64 and following of the statute book showed what became the position for those who, like our client, had been the subject of the kind of statement that Mr Justice Taylor made in 1974. Your Honours are familiar with it; I will not dwell on it. You see the definition of a “non-release recommendation” there. In clause 2 you see the eight years and 20 years distinction between the two classes. One also sees that there was under clause 8 of that schedule again the involvement of the Supreme Court.

Now, your Honours, those are the provisions under which eligibility was created by dint of the decision of Justice McInerney given the provisions with respect to parole. When section 154 is inserted the position is not to deny completely - - -

FRENCH CJ: Section 154A you mean.

MR WALKER: Section 154A came to be enacted - the position was not to deny completely the position. Rather, one sees that the provision has the effect of requiring the applicant to be in danger of imminently dying, to be in effect incapacitated, as well as the requirement of a justification in light of those circumstances. There is not, however, a removal of the requirement to consider all the other matters that apply in any event.

If consideration of all those other matters produced what is called “appropriateness of release”, to use the expression in those provisions, the provisions of section 154A would operate in such a case to superadd the requirements for moribund or incapacitated state, among other things. It is for those reasons, in our submission, that there is, as we put it, the effective destruction of the prospect in all but an extreme case.

KIEFEL J: But the prospect is already affected by section 154A(1).

MR WALKER: Yes, yes.

CRENNAN J: It is always contingent, is it not, on the Parole Board being satisfied of a number of conditions, as you pointed out, and this seems to be - - -

MR WALKER: Yes, an addition.

CRENNAN J: Yes, it seems to be a condition that from this State needs to be satisfied by the Parole Board or Parole Authority as it now is.

MR WALKER: Yes, is the short answer. I hope it is clear from what we have written in the three documents we have produced.

CRENNAN J: At the time Justice McInerney made his decision it seems from New South Wales’ submission that there were likewise a whole set of conditions that need to be satisfied by the Parole Board, I think as it then was, so always the prospect of parole was a contingent one.

MR WALKER: Unquestionably. I think we have made it crystal clear in our writing that all of this is the mere prospect of something which is dependent upon decisions, including evaluations, in no doubt contestable areas, value judgments to be made and judgments that look very close to policy judgments at certain points. Of course it is contingent in that sense. It is only ever a prospect. We have never argued, we could not possibly argue that it is anything more solid than that. If the insertion of section 154A into the scheme in which Justice McInerney’s order had operated does no more in the eyes of this Court than to adjust in an unexceptionable way the nature of contingencies, then we must fail in our case. We accept that.

FRENCH CJ: So there is no underlying major premise that any additional necessary condition upon the release of the plaintiff for parole imposed by statute after Justice McInerney made his order is invalid?

MR WALKER: No, that would be more ambitious than we could dream of, your Honour.

FRENCH CJ: So what is the underlying principle?

MR WALKER: The underlying principle here is that if that which has been introduced by section 154A deprives the order of Justice McInerney of “in effect”, an expression we repeat, in effect of its substantive determination, depriving of any real prospect of release, then – then there has been a legislative judgment instead of an appeal to the judiciary in order to affect the finality of the decision by Justice McInerney of eligibility with the prospect that eligibility carries.

The prospect that eligibility carries has been considered on the basis of the criteria which from time to time, we accept they may alter, which from time to time apply for release, parole, whatever language is used at the relevant time and that prospect, though the eligibility remains informed, that prospect is substantially eliminated by the moribund or incapacitated, et cetera, requirements of section 154A.

GUMMOW J: Could you just look for a minute at the Commonwealth submissions? I want to be clear about what your case is.

MR WALKER: What paragraph, your Honour?

GUMMOW J: Part IV, “Introduction”, paragraph 4. Is that an encapsulation of what you put to Justice Crennan a minute ago?

MR WALKER: Yes and “[altering] the effects”, the quoted expression, in the sense of the substantial effect, that is, its substance not only form - - -

GUMMOW J: It comes down to what is meant by the word “effect”?

MR WALKER: Yes, it does. Leaving a court order undisturbed in the records of the court, so no appeal, for example, is not enough to preserve its effect, according to our argument. Were Parliament to do what a Court of Appeal could do, set aside the judgment and make remedial orders to restore the position that had been reached by enforcement of the earlier judgment, if Parliament were to do that, in our submission, that would be a reflection upon the independence of the judicial system, including the appellate possibility, which is essential to the integrity of the original exercise of jurisdiction.

GUMMOW J: What is the answer to paragraph 9 of the Commonwealth submissions?

MR WALKER: That it is trivially true that it is a factum, it is not the whole of the account of its role at all. The effect of setting the minimum term, that is what – that is hence my reference earlier to artifice - the effect of that is, and only is, to provide the juncture at which parole might be sought. It is no more a mere factum than any judgment is a mere factum. All judgments are factums, that is, they are an event, the existence of which can be pointed to in order to justify assertions of right or denials of liability, but to call them a factum is excessively dismissive as to their definitional status as the way in which the judicial arm operates by producing determinations which have the requisite finality accompanied, of course, by the appropriate qualification to finality provided by such appeals as are available or provided and in this case, of course, including the possibility of an appeal under the Constitution.

HAYNE J: How do you describe the determination that is made when a minimum term is fixed? What is its content?

MR WALKER: Its content is to provide the date at which parole might be sought.

HAYNE J: Does it not fix the term which must be served as the minimum punishment required on this offender for this offence?

MR WALKER: Yes, indeed, and that is perhaps, from an overall point of view, a positive statement of the proposition that I gave in my answer. It is the same thing. This is how much you must serve, come what may, to which there is a qualification, subject to the prerogative of mercy. This is the period you must serve before – and then there is only one thing that follows that – before you may be paroled. That is why it is called “minimum” - - -

GUMMOW J: Before you may be eligible to seek parole.

MR WALKER: No, quite, and your Honours have seen – I do not need to elaborate on it in address – that there are variants as to whether application needs to be made or not, so when one talks about seeking parole, it may not be a formal step. Before you are eligible for parole, to use the statutory language, the eligibility for parole involving, as we emphasise, eligibility to be considered against both the particular and general criteria stipulated by the statute for the form of release that is involved in parole.

HAYNE J: That is to say, before you are eligible for subjection to a different set of restrictions upon your liberty.

MR WALKER: Yes, and I need of course to add that obviously the nature of both criteria and restrictions, criteria for release, restrictions upon release – serving sentence in the community, as it is sometimes put – can obviously be affected from time to time by legislation postdating the decision of Justice McInerney.

KIEFEL J: But from the time that the determination of minimum term is made from its inception, its effect as a qualification of the prisoner for consideration of parole arises only by virtue of legislation.

MR WALKER: Yes, and only by virtue of legislation which involves at the critical stage executive bodies, not a judicial body, notwithstanding the later possible involvement of the judiciary. Justice Kiefel, of course, has encapsulated what on one view is a problem with our position. It is certainly a defining feature of our case. The effect of section 154A is overtly to speak to the executive. I accept that.

The substantial effect of section 154A extends, however, to depriving the order of Justice McInerney of the prospect upon eligibility which was its only characteristic. It existed for no other thing. That eligibility has no existence apart from its operation in the media of the parole legislation. It does not speak about a pre-existing state of affairs at all. That is the distinction that your Honours will see in our written submissions that have been taken up by some of our friends for the interveners.

Your Honours, in the course of attempting to answer some of the matters your Honours have raised with me I think I have covered - I certainly do not think I can add anything to what we intend by the propositions ending 8 in our outline, and probably even a bit further. Could I add just one reference to the closed class subset propositions that you will see in paragraph 6 of our outline for address?

There is, as your Honours may recall, the reference quoted by Justice McInerney in his reasons. That is in the special case book, page 125, line 20 where Attorney-General Hannaford in 1993, when introducing those provisions to which I earlier drew attention, subsections 13A(8) to (8C), used the expression “relatively few” to describe those persons comprising the class we have described in 6(b) of our outline for address. So it started off “relatively few” and then there is less than that.

Now, in paragraph 6, of course, we are there adapting, but to quite a different purpose, the thinking which is described and discussed by Dr Gerangelos in the article. We need to make it clear of course we are conscious that we are adapting those notions in a situation where the object of the so-called direction is not a judiciary, but is the executive. I do not need to repeat myself. Yes, we understand that is what is going on.

It is by dint of that method where 154A says, “Well, do not worry about 154 and 135 and the others – all of those other matters may produce ticks for this prisoner, but because of 154A, which you must also do, the eligibility flowing from Justice McInerney’s decision for this man, though it would produce ticks and thus the prospect would be good, is reversed by 154A because he must be moribund or incapacitated”.

In the section of argument then is intended to be mapped by paragraphs 9 to 14 of our outline for address, matters are covered which I have already sufficiently addressed upon in response to your Honours. In paragraph 11 the importance of the different ways in which finality may be affected, given the Commonwealth Constitution, is sought to be evoked.

It is one thing to say that any first instance decision of a Supreme Court, may by dint of section 73 of the Constitution, regardless of any State legislation, still come to this Court. It is another thing, of course, for us to persuade your Honours that something involved in that fundamental difference between the judicial arm of government, at State level, and the legislative arm of government has been infringed in this case. We submit that that difference is supplied by the effective or substantial elimination of any real prospect in all but the most extreme and unrealistic situation. For somebody - - -

BELL J: If I can just take that up with you, Mr Walker.

MR WALKER: Yes.

BELL J: On and from 13 November 2003 your client has been eligible for release on parole subject to the mechanism that is provided under the Act for that.

MR WALKER: Yes.

BELL J: But for that order, in the event that your client were in imminent danger of dying or incapacitated to the extent that he no longer had the physical ability to do harm to any person, he would nonetheless not be susceptible of release.

MR WALKER: That is right.

BELL J: Whereas the effect of the order permits that course subject to the determination of the Parole Authority in conformity with the provisions of the Act.

MR WALKER: Yes.

BELL J: It is not quite right to say that section 154A has the effect of reversing, as it were, the effect of the order in the way that you put it a few minutes ago. It may substantially reduce - - -

MR WALKER: That is what I do say. It is such a substantial reduction as to deprive the eligibility of its intended effect which was, of course, for the matter to be considered on the merits which still remain for everyone else. Everyone who is not affected by 154A still only have to get ticks in the other boxes, all of which end up with a decision as to the appropriateness, including in the interests of the community and the likely lawful conduct of the parolee of release.

BELL J: So a judgment is to be drawn about where a provision trenches, as it were, on the substantive effect of the order?

MR WALKER: Yes, and that is why if that which has been done by 154A is simply the addition of an extra box with a difficult tick, none of that making it objectionable in terms of the effect it has by way of detraction on the operation of Justice McInerney’s orders, then we lose, yes. One is reminded, I accept, of the manner in Baker’s Case where the circumstances fell to be required as to whether they were or were not – I forget the word I used – illusory or of no reality.

CRENNAN J: The real difficulty, I think, is the one Justice Kiefel pointed out which is the rights only exist under the statute and accordingly it would be reasonably orthodox to approach that on the basis of those rights may be amended, subject to amendment, or indeed even repealed possibly.

MR WALKER: The American expression, “the changed law rule” is one that partakes of that kind of difficulty. Your Honours, it is plain, I hope, from our presentations that though, as Justice Crennan puts it, it might be seen as a difficulty that these are all purely statutory, as Justice Kiefel noted and as we embrace, we also have to use that, as you have seen, in our argument, when we say that by dint of that entirely artificial completely, purely statutory existence of these statuses, that is, that the effect of Justice McInerney’s decision, of course, was to create something. It is the fact that that creation has been effectively and in substance deprived of so much of its effect and operation, in prospect, that is the critical step in our argument. If we do not make that good and that is ultimately a question of degree affecting a view as to quality, if we do not make that good, we cannot succeed.

KIEFEL J: Justice McInerney’s determination of the minimum term to be served has not been altered. What you point to in your argument is, to move into the language of perhaps another area of the law, a connection, but you do not prove causation. You do not show necessarily that of its own force the determination had the effect of eligibility. You show a connection with statutory entitlements that might alter from time to time.

MR WALKER: We have shown and it is, we submit, plain to demonstration, that the only effect of Justice McInerney’s order was to set the period by reference to dates that our client must serve in imprisonment and thus the first date, that is another description of exactly the same date, the first date at which he was eligible to be paroled and the eligibility for parole involves the prospect contingent upon satisfaction of executive officers in relation to criteria which could be altered, we accept, but could not be altered, this is where we contest the matter, could not be altered so as, in effect, to deprive the eligibility and its accompanying prospect of any real substance. It is the deprivation of any real substance which is a necessary step, I trust, that is explicit in our written argument. I do not depart from that in address.

GUMMOW J: “Substance” is a metaphor really here, is it not? I know it is often used, but it can be a dangerous idea because of its imprecision.

MR WALKER: It is, at least, possibly slippery or hazy to mix metaphors. We need some such approach because, as Justice Kiefel points out, and as is very clear, with respect, the form of Justice McInerney’s order not appealed from remains an effective determination of a sentence with a characteristic, namely minimum term, but continues to have on the face of the statutes, though amended, the operation that your Honours have raised with me. So that form continues to exist. I cannot say there has been a legislative judgment which in form does what an appeal could have done to what Justice McInerney’s order. I accept that. I have got to the - - -

KIEFEL J: But what other content does it have?

MR WALKER: Your Honour, everything has content more than mere form. I am not saying form is to be dismissed but form tells you as a matter of legal effect the operation, but the substance can be denied by indirect methods in a way which, in our submission, this Court would not lightly regard as permissible evasions of a prohibition against interference with judicial process.

KIEFEL J: The determination itself is made according to statutory requirements so that the statute in its then form and in its amended form from time to time can operate upon it. That is its beginning and end.

MR WALKER: Yes. Your Honour, borrowing from another area of discourse, inherently susceptible to change. Yes, no doubt about that.

HAYNE J: Either you attribute significance to the fact that the judicial order intersected with an existing statutory scheme or you do not. You seek to stake out a middle ground which would have it that it is significant that there be an intersection with a statutory scheme that would, you would have it, realistically, substantially, some epithet like that, provided a prospect of release.

MR WALKER: I fear so, yes. We cannot go with the first because that would be to deny the undeniable; the capacity of Parliament lawfully to alter the parole system, including, with respect, to persons whose eligibility had been established before the amendment in question, but we are not that bold. Your Honour unkindly, if I may put it this way, uses the expression middle - - -

HAYNE J: As ever, Mr Walker, as ever.

MR WALKER: - - - ground, no doubt because we might be criticised for being unable to give words of precision to describe the difference between that unarguable proposition and the proposition which I am trying to advance. The difference is one of ultimately degree but there is nothing wrong with that as a form of constitutional argumentation. Questions of degree can inform matters of quality, and we submit that if the well-established, if sometimes obscure, distinction between substance and form is to have operation it will have operation where legislation has, if I can put it this way, studiously avoided alteration to form but worked considerable effects to substance which will include, for example, the practical enjoyment of that which in form continues to be in theory available.

In theory – well, not just in theory – there is on the face of section 154A still the availability of parole for the moribund or incapacitated, we accept that, and if that is enough for us to lose then we should lose on that simple proposition.

GUMMOW J: This notion of substance and form between legal and practical is familiar enough with section 92 cases and section 90 cases, I suppose.

MR WALKER: And 51(xxxi) cases.

GUMMOW J: It seems to throw your opponents into some sort of nervous state to introduce it here, but it does have a field of operation in constitutional law.

MR WALKER: Yes.

GUMMOW J: What you have to persuade us, I think, is how it translates into this particular Chapter III structure, which is what you are trying to hitch this to.

MR WALKER: Yes. Well, in our submission, there could be no more obvious place to refuse to be bound only to look at matters of form than suggested legislative interference with the independence of the judicial arm of government, be it State or Commonwealth. So that statutes which painstakingly avoided in form reversing a court’s decision, otherwise than by an appeal within the judicial arm, ought not, in our submission, be rewarded by their concern to observe forms by effective bringing of the judicial arm into the position where what appears to be final, what appears to have determined the dispute, in substance does no such thing.

It becomes not even a factum. It becomes a mere historical event of no lasting effect in adjusting the enjoyment of rights, or the position of obligations between parties, and when such legislation has an effect upon a judicial determination apparently final in which the State was either a party or in which it has a special interest, as in this case, then in our submission, all the more reason why in constitutional technique there would be a refusal to stop at a formal analysis. That is not to say one should not start with a formal analysis. Of course, one should. Without it, there is nothing.

GUMMOW J: One of the troubles I have is that cases like the Builders’ Labourers Case, for example, dealing with the impact of legislation upon judicial decision, they do not talk very much about substance. They seem to be rather focused on form, do they not?

MR WALKER: Certainly, and if one takes as the instructive contrast what the written submissions and also Dr Gerangelos have pointed out, that contrast between the federal and State decisions for that same Union’s deregistration, formal analysis is very important. They are not authorities that show that matters of substance do not matter, far from it. May it please, your Honours.

FRENCH CJ: Just going to page 179 of the book - - -

MR WALKER: Of the special case book?

FRENCH CJ: Yes, special case book, I am sorry, just at the end of Justice McInerney’s judgment – I am not trying to extract what are the operative parts of his orders. There is the sentencing to a minimum term of penal servitude - - -

MR WALKER: At the foot of 179, about line 47 or so - - -

FRENCH CJ: That is it, yes.

MR WALKER: That is the date, that because it is the latest one, is operative with respect to the regime from time to time, as it happens always to have existed for eligibility.

GUMMOW J: Why did Justice McInerney fix a date which was not the date of sentence by Justice Taylor? It was earlier, was it not?

BELL J: It was the date that he was taken into custody on remand, I think.

MR WALKER: I am sorry, yes.

BELL J: Can I just take up one thing which I know is not directly raised by your present argument, Mr Walker, but it partly turns on an exchange you had with Justice Hayne concerning the effect of a determination under section 13A of the Act as it then was.

MR WALKER: Yes.

BELL J: Subsection (6) provides that:

If the Supreme Court sets a minimum term and an additional term under this section, the sentence comprising those terms replaces the original sentence of imprisonment for life.

The scheme is on the making of an application the court had power under subsection (4) to set both a minimum and an additional term. The form of the order in relation to the conviction for the conspiracy to murder Mrs Morse was a fixed term of 25 years imprisonment, which one understands may have been considered appropriate because by that date the

maximum sentence for that offence had been made 25 years, albeit there was no requirement that the life term imposed for the conspiracy respecting Mrs Morse be redetermined conformably with that provision.

MR WALKER: Yes.

BELL J: Strictly in terms of the formality of what was to be done under section 13A, is there a difficulty with a fixed sentence?

MR WALKER: Yes, as we see it, yes. Now, it is passed – and I say again, I hope not merely mischievously, there was no appeal.

BELL J: Yes.

MR WALKER: The critical date, of course, is the later date of November 2003. If it please the Court.

FRENCH CJ: Thank you, Mr Walker. Solicitor-General for New South Wales.

MR SEXTON: If the Court pleases. Your Honours, in our submission, it is hard to identify the principle under Chapter III that might be contravened by the legislation in this case, that is section 154A. Kable and the three decisions of this Court that have applied that principle to invalidate legislation, IFTC, Totani and Wainohu all concerned functions conferred on a State court by legislation, or in the case of Wainohu on a judge of such a court and that is not this case.

Nor, we would say, is this a case about legislation interference with judicial power. There is and there was no pending litigation here that could be affected by section 154A. That was really the subject of the article by Professor Gerangelos, that is, legislation that infiltrates a traditional judicial domain and/or has as its object a traditional judicial discretion. There is the decision of Justice McInerney still existing that set the non-parole period of 30 years while also setting the additional term of the life sentence.

FRENCH CJ: Would it be right to say that that decision was informed by the statutory framework which would govern consideration of the release for parole or is it to be somehow detached conceptually from that?

MR SEXTON: Well, I think it is detached. I was just about to say that – because your Honour has just taken my learned friend, Mr Walker, to that almost final paragraph of Justice McInerney’s judgment where he refers to the date and what he said was that Mr Crump “will be eligible for release on parole” on - - -

FRENCH CJ: That was just a comment, was it not? That has no statutory significance.

MR SEXTON: Well, quite so, your Honour. We would say that that assumes that there will be some statutory parole regime at the time, which there does not have to be.

FRENCH CJ: But the whole point of him fixing a minimum term, apart from stating the minimum period that he must serve, is linked to the statutory scheme relating to eligibility and its consequences, is it not?

MR SEXTON: If there is one, if there is one in existence when that date arrives. The problem really is, in a sense, the word “eligible” because we would say that it really means no more, in that sentence, than that the plaintiff’s minimum term would expire on the particular date nominated by Justice McInerney.

BELL J: But the form of the order, if that is how it is to be described, at the base of appeal book 179 is consistent with his Honour sentencing conformably with the Sentencing Act which, as I recollect it, required the specification of the minimum term and then required the sentencing judge to specify the first date upon which a person would be eligible for release, conformably with the statement of the minimum term. I think that is what his Honour was doing, albeit it may not have been requisite under the scheme of 13A.

MR SEXTON: That is what I say, that the word “eligible”, we would say, in this context and I will come to this in more detail, but it does not, in a sense, give rise to any right or entitlement, if there is an assumption there by Justice McInerney, quite a reasonable assumption, of course, that there would be a statutory regime in place at that date dealing with parole in New South Wales. That is the only assumption that is really made.

HAYNE J: We do not have in the special case book, do we, whether it is an order or return of prisoners or whatever the document is that records formally the order or the sentence passed?

MR SEXTON: No, I think that is right, your Honour.

HAYNE J: What was it then in New South Wales - a return of prisoners or was there an order taken out or do we know?

MR SEXTON: I do not know the answer to that, your Honour. It is not in the materials. We can check. So there is that problem, we would say, about that word “eligible”. It is really used there, we would say, in a different sense from the way it is used under the parole legislation where it really there means a legal precondition for consideration of parole and that is not, we would say, the way in which Justice McInerney was using it.

FRENCH CJ: Would Justice McInerney’s task or the way he had to approach it have been any different had section 154A been in force at the time he made his decision in relation to 13A?

MR SEXTON: We would say not, your Honour, because all that he has done, in our submission, is to determine the sentence and provide for an additional sentence. He does not say anything really, we would say, in a legal sense about parole. Your Honours, I was going to take your Honours very briefly to two cases. They are only really sentences which I can read to your Honours, but the first one is from Elliot v The Queen [2007] HCA 51; (2007) 234 CLR 38 at paragraph 41 where the Court said:

What must always be unknown to a sentencing judge –

which was in a sense what Justice McInerney was doing here –

and the Court of Criminal Appeal are the paths that may be taken with respect to any status quo by future legislation.

At paragraph 5 the Court said that:

Subject to the appellate system . . . the exercise of judicial power with respect to the trials upon indictment of Elliott and Blessington was spent upon the subsequent imposition of the sentences upon them. The controversy represented by the indictment had been quelled and, allowing for any applicable statutory regime, the responsibility for the future of the appellants passed to the executive branch of the government of the State.

We would say that is equally true here in relation to the judgment of Justice McInerney. There is simply one sentence, your Honours, that Chief Justice Gleeson noted in Baker v The Queen [2004] HCA 45; (2005) 223 CLR 513 at paragraph 7. He said:

The longer the original sentence, the more likely it is that an offender will be affected by subsequent changes in penal policy.

Your Honours, it might be useful, we would say, to look at how the plaintiff puts his case. In paragraph 43 of the plaintiff’s written submissions it is said that 154A:

operates directly upon rights or entitlements created by a judgment or order of the NSW Supreme Court, as distinct from some right or obligation which has an existence independent of that judgment or order.

In fact, and I think Justice Kiefel raised this question earlier, the only right or entitlement created by the judgment was the substitution of a minimum term and an additional term for the previously indeterminate life sentence, and any right to have the question of parole considered or any obligation to consider that question would exist, if at all, independently of the judgment. It would exist as at 13 November 2003, which was the expiration of the minimum sentence, and also after that date, depending on the legislation.

I think my learned friend, Mr Walker, said this morning that section 154A deprived the order of Justice McInerney in effect, in effect of its substantive determination. Justice Gummow raised the question of form and substance and legal and practical effects, but we would say that none of those are relevant in this case.

FRENCH CJ: What was the point of Justice McInerney giving consideration to all these psychiatric reports and various factors he mentioned at 178 and so forth if the only basis upon which the plaintiff could be released on parole was if he was about to die or if he was too incapacitated to be any physical risk to anybody?

MR SEXTON: The purpose of looking at all that at that time was to – went to the question of determining the sentence.

FRENCH CJ: But it did fit in within the framework of the statutory scheme that then existed for consideration of parole, did it not, because he had regard to those provisions?

MR SEXTON: It might, it might, in the case of many prisoners under the parole legislation but some prisoners are in different categories, of whom the plaintiff is one.

HAYNE J: Why would it not be necessary to have regard to that material in fixing, as was picked up in Bugmy 169 CLR particularly at 538:

The . . . minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law - - -

MR SEXTON: It was, your Honour. That was the point of consideration by Justice McInerney.

HAYNE J: The judicial determination that is engaged is in fixing the least time which the judge estimates should be served to yield an appropriate result in regard to the circumstances of the offender and the offending?

MR SEXTON: That is right, your Honour, but then at that point it becomes a decision for the Executive as to whether that is acted on.

HAYNE J: It may be rather more detailed than that because execution of sentence is for the Executive to administer it and execution is to be administered, no doubt, according to law, in particular relevant Prisons Acts, but the extent of deprivation of liberty as, for example, whether the prisoner is incarcerated in a unit of particularly harsh discipline or in what is sometimes referred to as an open prison is for the Executive to determine within relevant statutory limits. Parole is a further step along a rather more detailed set of steps about the nature and extent of deprivation of liberty which, subject to legislation, is a matter for the Executive.

MR SEXTON: And dependent on the legislation at the particular time. I was just going to say, your Honour, that on page 13 of the legislation book your Honour will see that in setting that minimum term there was a requirement that the court have regard to reports such as the psychiatric reports. It is section 13A(9)(b) at the very bottom of the page.

BELL J: This in the context of the unusual exercise that 13A directed the court to embark upon. A person had been sentenced to life. The sentencing judge may or may not have expressed an opinion, including that the person should never be released from custody, as had occurred here, then by reason of the change in – effected by the truth in sentencing scheme of legislation a judge, possibly a different judge, was required to consider afresh matters including matters appropriate to sentencing of the type referred to in Power and Bugmy at a time when the person may have served, as this prisoner had, 23 years of imprisonment. So it is in that context that you find the requirement to have regard to psychiatric reports and the like.

MR SEXTON: Amongst other things and other materials as well, your Honour, that is right.

BELL J: Yes.

MR SEXTON: Can I just continue with the way in which the plaintiff puts the case? In paragraph 53 of the plaintiff’s written submissions it said that:

s 154A deprived the plaintiff of what was previously his entitlement – admittedly a contingent one – to seek mandamus upon a failure by the Parole Authority to discharge its duty under s 143 of the Administration of Sentences Act.

The problem here is the word “entitlement” which we would say did not arise out of the judgment of Justice McInerney but from section 143 of that legislation, and that statutory entitlement which did not exist in any event in relation to the plaintiff until 13 November 2003 was altered by another statutory provision, section 154A, which came into operation on 20 July 2001. So by the time any “entitlement” - to use that word of Mr Crump - came into existence section 154A was part of the statutory regime governing that entitlement.

In my learned friend’s outline that was handed up this morning again one can see the word “entitlement” used in paragraph 8 and in paragraph 10 - or “rights or entitlement” in paragraph 10 – we would say with the same difficulty, and there is a reference to paragraphs 3(a) and (b), and my learned friend distinguishes between what is described as:

(a) the genuine consideration by the Parole Authority, in accordance with criteria prescribed by the Parliament of New South Wales, of whether or not the prisoner should be released on parole; and

(b) a situation in which the Parliament directs the Parole Authority, in relation to a specific prisoner, as to the outcome of its consideration.

Now, (b) is perhaps not quite this situation, but we would say that for legal purposes that one would not distinguish between (a) and (b), that neither would contravene any of the principles implied from Chapter III. Finally, in paragraph 56 of the plaintiff’s written submissions, it is said that section 13A, which allowed the determination of the sentence, creates:

a new entitlement in favour of the relevant offender (that is, eligibility to be released on parole on the expiration of his or her minimum term).

Again, the same problem we would say with the terms “eligibility” and “entitlement”. What section 13A(4) provided was that the court might set:

a minimum term and an additional term . . . during which the person may be released on parole -

This leaves open the possibility of parole, if that be available under the relevant legislation, at the time when the minimum term expires, so neither of those terms, “eligibility” or “entitlement”, we would say are apposite in those circumstances. Finally, in paragraph 57 of the plaintiff’s written submissions it is said that:

s 154A operated directly upon certain rights or entitlements of the plaintiff which had no existence independent of a judgment or order of the NSW Supreme Court.

We would say that any rights or entitlements that the plaintiff might have had as at 13 November 2003 to have the question of parole considered – and this is really the question raised by Justice Kiefel – arose not out of the judgment of Justice McInerney, but out of the parole legislation then in existence, which included by that time section 154A.

Can I just remind your Honours of three or four dates? The judgment of Justice McInerney was 24 April 1997 and at that time there were under the Sentencing Act a range of preconditions to a grant of parole by the Parole Board, all of which applied to prisoners with a sentence exceeding three years for whom a parole period had been set, and there were additional ones that were applicable to serious offenders. I will not take your Honours to them, they are at pages 20 to 21and 24 to 33 of the legislation book. Then 9 May 1997 was the commencement of what was then section 22P of the Sentencing Act and that added further conditions in relation to serious offenders whose sentence had been the subject of a determination under section 13A of the Sentencing Act, and that is at page 36 of the legislation book.

Then 3 April 2000, the Sentencing Act was repealed, and Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 commenced. Schedule 1 contained the re-enacted provisions relating to the determination of sentences, and in considering the question of parole for a serious offender whose sentence had been the subject of a determination under that legislation or the earlier section 13A the Parole Board was required to have regard to a range of matters set out in section 135, section 154 of the Crimes (Administration of Sentences) Act 1999, which came into operation on the same date, 3 April 2000, and 20 July 2001 was when section 154A came into operation and attached still further conditions in relation to a serious offender whose sentence had been the subject of a determination. There is a progression there of quite detailed conditions attaching to a grant of parole running over a period of time, and to some extent, an upward trend in the number of the conditions as the legislation progresses.

Now, just on the question of parole generally, in Bugmy [1990] HCA 18; (1990) 169 CLR 525 at 536, Justices Dawson, Toohey and Gaudron said of the provisions under the relevant Victorian legislation fixing a minimum term for prisoners serving life sentences that, to quote:

thereafter the Parole Board may, but of course need not, grant the prisoner parole –

In Power [1974] HCA 26; (1973) 131 CLR 623 at 628 to 629, Chief Justice Barwick, Justices Menzies, Stephen and Mason said of the power for the relevant parole body, in this case, the ACT:

Its authority is to release the prisoner conditionally from confinement in accordance with the sentence imposed upon him. The sentence stands and during its term the prisoner is simply released upon conditional parole. Indeed, we think it is a misnomer to refer to a minimum sentence and a maximum sentence. In truth there is but one sentence, that imposed by the trial judge, which cannot be altered by the paroling authority.

It might be noted, of course, that a pardon has what might be termed a practical effect on a person who is serving a prison sentence, but it does not eliminate the conviction. Only a court can quash the conviction, but the pardon does affect the exercise, the previous exercise, of judicial power. We just refer the Court, I will not take your Honours to it, to the comments to that effect by Justice Heydon in Eastman v DPP (ACT) (2003) 214 CLR 318 at paragraph 98.

Two final matters, although the Parole Board in its letter to the plaintiff of 12 September 2003, which is in the special case book at page 192, stated that he was not eligible for parole. It would be more accurate, we would say, to say that the Board considered his application for parole under section 143 of the Crimes (Administration of Sentences) Act, which is at page 41 of the legislation book, and refused the application under section 154A of that same Act. It might, of course, equally have refused the legislation if it was appropriate to do so, on the basis of, for example, the plaintiff’s conduct in prison or on the basis set out in section 154(2), which is at page 46 of the legislation book where the Parole Board was to take into account the recommendations of the trial judge and “the safety of the community”. In fact, in many ways, it is difficult to see the difference in character between section 154A and section 154(2).

The plaintiff can, of course, apply at any time under section 154A(1) and (2) for consideration by the Parole Authority of the question of parole, although obviously the requirements of section 154A(3) would obviously still stand in his way as they did on the last occasion.

GUMMOW J: Mr Solicitor, could you just go back to Bugmy for a minute in 169 CLR? You took us to page 536, I think, the last paragraph there, referring to the Victorian decision:

“The scheme of the legislation is plain enough. The intention of the legislature is that a minimum term is a benefit to the prisoner . . .” That benefit lies in providing the prisoner a basis for hope of earlier release and in turn an incentive for rehabilitation –

If you go over to 538 at about point 7 there is a reference to Chief Justice King in Robinson in South Australia:

But in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole –

Then there is a reference to Justice Jenkinson:

The . . . minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law –

I am not quite sure how 538 fits with 536.

MR SEXTON: Well, they are both in a sense, your Honour, broad statements about what normally is true of parole legislation. It can on occasions, and this is one of them, it can make a different specification for some, or for all prisoners, but those two statements in a sense would reflect normal penal policy, subject to variations in any particular statute, so to that extent they may be consistent.

HAYNE J: Bugmy has to be read, I think, in the light of Power and the resolution in Power of what seems to have been a controversy, perhaps a controversy derived from the decision of the Court of Criminal Appeal in Sloane in 1973 about whether you are conferring a benefit on a prisoner or you are fixing the minimum term that must be served for justice according to law, and the Court I think in Power plumped for the latter rather than the former, did it not? That you are, in fixing a minimum term, focussed upon the determination of the least time in prison that must be served, having regard to the circumstances of the offender and the offending?

MR SEXTON: Well, we would say that that is the primary purpose. Of course, in many cases it will also perhaps contingently confer a benefit.

FRENCH CJ: There may be a dual characterisation, might there not?

MR SEXTON: Yes, that is right.

FRENCH CJ: And where statutory consequences attached to the determination of the minimum term, they being eligibility for parole and the whole paraphernalia of Parole Board consideration and so forth?

MR SEXTON: The first is a judicial order whereas the second - - -

FRENCH CJ: You say the judicial order is not informed by reference to the fact of potential release on parole thereafter?

MR SEXTON: Well, it cannot be in a sense, your Honour. As I say, there can be an assumption which will generally be correct, that there will be a regime in place, although quite what its nature will be particularly in terms of lengthy sentences would be hard to speculate, but it is possible and, for example, at one time, of course, in New South Wales there was the ticket of leave system but - - -

FRENCH CJ: The licence, yes.

MR SEXTON: Yes, but there was no other regime in place so it was purely that - - -

BELL J: Then when a system of parole was introduced there was one view which was that the non-parole period should be the minimum time that would enable the parole authorities to assess the offender’s prospects of rehabilitation. It was that notion placing primacy on considerations of rehabilitation that was rejected in Power in the passage to which Justice Hayne has directed attention, I think, is the history of the matter.

MR SEXTON: Yes, quite so.

GUMMOW J: In Power at 629 it is also important to understand that at least in 1974, look at the last paragraph at 629 at 131 CLR:

in both South Australia and Queensland, the power to determine how much of a sentence of imprisonment shall be served by a prisoner, has been given almost entirely to the paroling authorities -

MR SEXTON: Well, that perhaps, in a sense, goes back to the original system in New South Wales. Unless there are any other matters, your Honour, those are our submissions.

FRENCH CJ: Thank you. Solicitor-General for the Commonwealth.

MR GAGELER: Your Honours, the proposition that a law that would alter the effect of an order of a Chapter III court violates Chapter III was explored in argument on 31 January in the AEU Case. What I had to say

and what I have to say as to that proposition I said in argument in that case from line 2915 to line 2970. There was in that case and is in this case no nervousness on my part about using the language of substance. But the question of substance that is raised by a subsequent change in the substantive law is, in essence, whether or not that change replaces a party specific judicial judgment about rights or liabilities with a party specific legislative judgment about the same rights or liabilities. When that question of substance is asked of this legislation, the answer is no.

Your Honours, or I should say a letter from the Court referred to an article by Associate Professor Gerangelos published in 2008. The following year, 2009, Associate Professor Geranagelos published an entire book on the separation of powers and legislative interference in judicial process. That article, dealing with pending cases, became Chapter II and there is another chapter in the book, Chapter IV, which deals with final judgments. The subject matter of that chapter is much closer to this case and much closer to the AEU Case. It is a helpful discussion. It contains no crystalline point of principle but what is recorded in the discussion at pages 208 to 209 of that book is consistent with the propositions I put in January and that I restate now. If the Court pleases.

FRENCH CJ: Thank you, Mr Solicitor.

MR SOFRONOFF: Your Honours have our oral outline, I think.

FRENCH CJ: Yes, Mr Sofronoff.

MR SOFRONOFF: Your Honours, our learned friend, Mr Walker, submitted to the effect that if the statute deprives the order of Justice McInerney of any effect, then there has been a legislative judgment instead of an appeal to the judiciary. That raises the question, what is the effect of the order of Justice McInerney and that requires a look at section 13A of the Act. Could I ask your Honours to look at that?

His Honour’s order, of course, was made under that section and the persons who are eligible to make an application under that section are persons who are serving what is called an “existing life sentence”, meaning:

a sentence of imprisonment for life imposed before or after the commencement of this section –

but excludes some others. Such a person then makes application and the application is for the determination of something, the determination of a minimum term and an additional term. Then subsection (4) empowers the court to do something and that is to set the minimum term and to set the additional term. The use of the word “set” is repeated in subsection (5) to describe what may have happened –

A minimum term set under this section –

Could I skip over (6) for the moment. Subsection (7) repeats the word “set”, (8) uses the term “determine” and (9) again uses the verb “setting”. So, what a court does, upon such an application, leaving aside subsection (6) for the moment, is to make a determination or make directions or an order that sets two matters, two facta, if you like, a minimum term and an additional term, as triggers for the then ancillary parole regime under which the Executive could release a prisoner from custody or choose not to do so. Subsection (6) provides that when:

the Supreme Court sets a minimum term . . . the sentence comprising those terms replaces the original sentence of imprisonment for life.

Read literally, that would mean what it says, that the original sentence is vacated and a new sentence is imposed, despite the fact that the prisoner remains in prison for life subject to the right to apply for relief from the Executive. It may be that section (6) speaks in terms of the sentence replacing the original sentence in order to ensure that a person serving a life sentence which has been made the subject of a determination under this section no longer falls within the definition of a person serving an existing life sentence because it would not be a sentence of imprisonment for life imposed before or after the commencement of this section.

Be that as it may, the substantive matter in which the court has engaged under section 13A is not to consider afresh whether the prisoner should be sentenced to a life imprisonment but, in truth, to determine two things whose only significance is to trigger ancillary legislation pursuant to which the Executive might or might not do something.

If one looks at the original sentence of Justice Taylor – that appears at page 49 of the book – we can see at the foot of the page the traditional language, “you are sentenced to life imprisonment”, and then there follows some other sentences that are not material. When we go to Justice McInerney’s order, which is at 179, his Honour then uses the language of subsection (6) by using the word “sentenced”, but what he has done is to set the minimum term and the additional term, which is over the page, “I set an additional term”.

So in our respectful submission, what the court has done in that exercise is to engage in an exercise which owed its existence to an act pursuant to which a prisoner might or might not become eligible for release by way of parole. The sentence of life imprisonment thereafter is not

altered. If one accepts subsection (6) in its literal form, even so, the sentence of life imprisonment is not altered, although the form in which that sentence is expressed has changed.

Consequently, what has happened is that the court has sentenced the plaintiff to life imprisonment. In due course, Justice McInerney set a minimum term before which it would not be right to release him, in the court’s adjudication. Nothing that has happened with respect to the statutory changes thereafter has affected, in substance or in form, that aspect of the order of Justice McInerney.

Could I say something about the reference to an entitlement? It is, as we apprehend it, essential to the plaintiff’s case that there be an entitlement which is dashed by the subsequent legislation. Your Honours have already been referred to the dicta of Chief Justice Gleeson in Baker v The Queen [2004] HCA 45; 223 CLR 513. At 520 in paragraph 7, his Honour described in detail that I need not recite, that the regime for release on parole can be expected by any person reasonably considering it to vary from time to time as it has, and the longer the sentence, the more chance of variation.

Consequently, the reasonable entitlement or expectation of entitlement that the plaintiff might have had was to be considered for parole according to a legislative regime which he would hope would exist from time to time in whatever form it existed from time to time. He could not be said to have had a legitimate or a reasonable expectation to be considered for parole under the regime which existed at the date of Justice McInerney’s order until he had served his sentence, however long that might be. Those are our submissions, your Honours.

FRENCH CJ: Thank you. Solicitor-General for Victoria.

MR McLEISH: If the Court pleases. It is submitted that when one looks at what the judgment of Justice McInerney did and what sections 145 to 154A provided for, one sees that there is no impermissible interference with judicial power. The judgment of Justice McInerney, as your Honours have heard, satisfied a precondition for the plaintiff to be granted parole under the then existing statutory scheme – that is, in particular, the precondition in section 14(2)(a) of the Sentencing Act which is at page 20 of the book of legislation.

There were other preconditions, in particular, in section 17, remaining to be satisfied. Section 154A does nothing more, it is submitted, than to add additional preconditions thereby doubtless lowering the plaintiff’s hopes of parole, but not denying that the precondition which was satisfied by the judgment of Justice McInerney had been met. Whether the plaintiff’s hopes of parole are characterised as an eligibility, a prospect, hopes or a chance at parole, what the plaintiff is seeking is to imply into the Constitution a restriction on State legislative power that would prevent that effect of Justice McInerney’s judgment from being altered.

It is only that effect and not the judgment of Justice McInerney or the orders that the legislature has altered by enacting section 154A. Doubtless, in fixing the minimum term, Justice McInerney had regard to the fact that one effect of fixing a minimum term was that parole, under the existing regime, may then be granted, but the content of any parole regime and the conditions required in order to be granted parole necessarily vary from time to time.

We set out in paragraph 22 of the written submissions an observation of Chief Justice Gleeson in the Court of Criminal Appeal of New South Wales in Jamieson v The Queen (1992) 60 A Crim R 68 which was directed at the practice of making non-release recommendations. The passage is at page 80 and what Chief Justice Gleeson said is that:

it is normally not appropriate for a sentencing judge to seek to anticipate decisions that might fall to be made by other persons, and in other proceedings, or under other legislation, over the ensuing decades.

That is consistent with the very nature of parole which has always been a matter for the Executive in the administration of a sentence, subject to legislative direction that may be made from time to time.

The judicial task is complete once sentence is passed and thereafter either the Executive or the legislature might act so as to raise or lower the hopes of a sentence to prisoner in relation to parole without altering the sentence in any way. The Solicitor for New South Wales took your Honours to the passage in Elliot v The Queen at paragraph 5 and the Court has also been taken to Baker v The Queen. I wanted to refer your Honours also to the passage in Baker v The Queen [2004] HCA 45; 223 CLR 513. The passage is at 528. It is in paragraph 29 of the judgment of Justices McHugh, Gummow, Hayne and Heydon. Their Honours point out that:

the only sentence that could be passed was that the offender suffer penal servitude for life. Upon passing that sentence the judicial power was exhausted. Whether the offender served the sentence in prison or at large was a matter which then was to be decided by the Executive . . . But in no sense (whether as a matter of substance or as a matter of form) can later legislation, altering the circumstances in which such mercy could or would be extended to a prisoner sentenced to life imprisonment, make that sentence of life imprisonment more punitive or burdensome to liberty. Whether the power to reduce the effect of a life sentence is given to a court (as the legislation now in question did) or is retained by the Executive, the original sentence passed on the offender could not be and was not extended or made heavier.

That, it is submitted, reflects the role of the Executive in administering a sentence. The present case could be compared with a regime in which parole was at the discretion of the Executive, governor-in-council, for example. Actions of the Executive in that context could be taken in the form of announcements of policy or intention that may well raise or lower the hopes of a sentenced prisoner in relation to parole, for example, by the relevant Minister indicating that so long as he or she was the Minister that a certain person would not be being released. It could not be said, it is submitted, that that would undermine the sentence that had been passed by the judicial branch.

It is the same, it is submitted, in relation to the New South Wales regime. It is not necessary to state the relevant test for drawing constitutional implications to draw any implication from section 73 protecting the effect of judicial decisions in that way and especially so, it is submitted, in the absence of the additional considerations the federal jurisdiction may give rise to.

Once the controversy in this case was quelled by the passing of the sentence, the judicial power had been fully exercised and the case is therefore well outside the Kable line of cases addressing usurpation of judicial power or the misuse of courts as a cloak for the executive function.

While section 73 doubtless limits the power of States to provide for the determination of appeals from the Supreme Court, because of the final and conclusive nature of this Court’s decision on such appeals it does not follow, it is submitted, that the effects of the Supreme Court judgment can only be altered by the exercise of judicial power. Section 154A is not an exercise of judicial power and one way of testing that, it is submitted, is to ask whether a court on appeal could have made an order in the terms of section 154A, that is on appeal from the judgment of Justice McInerney, and it is submitted that plainly that could not have happened.

As such, the law here is not capable of being seen as an exercise of judicial power and it is submitted that section 73 therefore has nothing to say about its validity. May I mention finally, there was perhaps an invitation by the Solicitor for the Commonwealth to transpose principles that might apply in a federal jurisdiction context as argued in the AEU Case into the present proceeding? We would urge the Court to resist such an invitation on the basis that separation of powers issues, of course, are quite

different at the Commonwealth and State level; consideration of separation of powers may give rise to limits at the Commonwealth level, which they would not give rise to at the State level. If the Court pleases.

FRENCH CJ: Thank you. Mr Mitchell.

MR MITCHELL: If it please the Court, we are content to adopt our written submissions and also the oral submissions of the Solicitor-General for New South Wales and others in support of the validity of the legislation.

FRENCH CJ: Thank you, Mr Mitchell. Mr Evans.

MR EVANS: If the Court pleases, likewise South Australia is content to rely on its written submissions and adopt the oral submissions of New South Wales and the other intervenors.

FRENCH CJ: Thank you, Mr Evans. Yes, Mr Walker.

MR WALKER: Your Honours may have noticed that at the pages referred to by my learned friend for the Commonwealth in Doctor Gerangelos’ book, The Separation of Powers and Legislative Interference in Judicial Process at pages 208 to 209 there are, by dint of the quotations from Cooley included in passages referred to in Quick and Garran, references in particular two-thirds of the way down page 209 to Cooley’s resort to a form and substance distinction.

The Chief Justice raised the question whether, in any relevant respect, Justice McInerney’s decision would have been different had section 154A been in force. It is tempting to content ourselves with this response, well it certainly would have been different in its effect, measured as a prospect of release, and that really is our case.

It is difficult otherwise to divine whether such a restriction on the possibility that is the prospect of release some time in the future by reason of executive decision and his physical circumstances, it is very difficult to divine whether or how that would have affected Justice McInerney’s assessment of matters.

There is a passage in the special case book, starting at about page 152, but culminating in a passage at 154, 155 - I will not read it - the conclusion is at 155 at about line 25, or thereabouts. It may be that that supports the view that there would have been no difference, because I am at a loss completely to explain the place of this in his Honour’s reasoning.

His Honour does very clearly there say that our client could have held no reasonable expectation of “Release on licence”. Of course,

Mr Justice Hunt had earlier been quoted by his Honour, pointing out the difference between release on licence and parole. That may only be a straw in the wind. It rather suggests there might not have been, as a matter of substance, any difference to first the decision that there should be a determination and second, that the minimum term should be as selected by his Honour.

But, of course, to return to my first response, well there certainly would have been a difference in the nature because of the extent of the prospect of release constituted by that judicial pronouncement in light of that hypothetically different parole system, such as would be known to Justice McInerney himself. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.

AT 12.20 PM THE MATTER WAS ADJOURNED