BY SARAH MURRAY

Section 74AA of the Corrections Act 1986 (Vic) is an extraordinary provision. Ad hominem in nature, it is directed at Julian Knight. Knight, perpetrator of the Hoddle Street massacre, was sentenced in 1988 by the Victorian Supreme Court to a life sentence for seven separate counts of murder and a sentence of imprisonment for 10 years for each of the 46 counts of attempted murder (each sentence to be served concurrently).

In the Second Reading Speech introducing the provision, the Minister for Police and Emergency Services declared that ‘the Victorian community can be certain that they are protected forever from the possibility that Julian Knight will one day be free to commit another atrocity’. Enacted one month before Knight’s minimum term expired, it limits the Adult Parole Board’s ability to make an order for Knight’s parole to circumstances where he ‘is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person’ and ‘has demonstrated that he does not pose a risk to the community’. It excludes the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic), including s 31(7), which provides a sunset period for Charter override declarations.

Extraordinariness aside, the difficulties for Knight in bringing a Chapter III constitutional challenge against the provision were many. First, in Kuczborski, Crennan, Kiefel, Gageler and Keane JJ had emphasised that ‘the severity … of laws’ does not determine constitutionality under the Kable principle (at [207]).

Further, while the Kable guard-dog does restrict State legislatures, it is centred on protecting the ‘institutional integrity’ of State courts.  The problem for Knight was that the Victorian legislation was an almost exact replica of NSW legislation that had been considered by the High Court in Crump (s 154A Crimes (Administration of Sentences) Act 1999 (NSW)), albeit the Victorian provision was ad hominem in its application. In Crump, parole was confirmed to be an executive function, quite separate from the judicial sentencing role, and subject to the applicable parole guidelines of the day. Distinguishing Crump was also complicated by the fact that not only was the relevance of its general application disputed but French CJ had referred in Crump (at [22]) to the legislative objects of the NSW Act as having ‘[a]n ad hominem component’.

Knight argued that the Victorian provision could be distinguished on the basis of its unique ad hominem drafting which particularised ‘the prisoner Julian Knight’ and his sentence made ‘by the Supreme Court in November 1988’ of ‘life imprisonment for each of 7 counts of murder’.  He argued that s 74AA compromised the institutional integrity of a ‘court of a State’ in two ways.

  1. First, as a matter of substance, it interfered with Hampel J’s original sentence, compromising the institutional integrity of the Supreme Court, in eradicating the benefits of the minimum term or non-parole period of 27 years set by Hampel J because of the Plaintiff’s youth and chance of being rehabilitated.
  2. Second, Knight contended that the parole Board’s function was contrary to Chapter III in that it contemplated vesting an incompatible function in a State judicial officer. This argument was based on the legislation’s contemplation, but not stipulation, that a sitting judge could be appointed to the parole board. There was no sitting judge appointed to the parole board at the time it considered Knight’s case.

Interference with sentence

In the Court’s first unanimous constitutional law joint judgment since May 2016 in Day, their Honours (at [6]) rejected the contention that the provision ‘in its legal form’ or ‘substantial practical operation’ interfered with Hampel J’s sentence. Aligning the Victorian legislation with that considered in Crump, the bench held that it did not interfere with the Supreme Court’s sentence because the minimum term was not pinpointing Knight’s release date and the determination of his release ‘was simply outside the scope of the exercise of judicial power constituted by the imposition of the sentences’ (at [28]). The fact that it was likely that Knight would remain in prison did not alter the minimum term itself or the severity of the sentence which were judicially determined. To the extent that Crump was indistinguishable and the legislation ‘identical in substance to the legal and practical operation of s 74AA’, the Court was not willing to reconsider or overrule Crump’s findings (at [25]).

Knight repeatedly stressed that the reference in s 74AA(6) reference to a particular sentence made ‘by the Supreme Court in November 1988’ played more than an identifying role and that within the ‘politically charged context … undermines the institutional integrity of the court that is being targeted by the legislation’. As the Victorian Scrutiny of Acts and Regulations Committee noted, ‘[t]he practical effect of clause 3 of the Bill may be equivalent to replacing that order with an order that his sentence not include any parole eligibility date’. Keane J contended, in argument, that the legislation ‘is not disapproving of the sentence’ but ‘disapproving or expressing a lack of confidence in the executive organs of government that are charged with ameliorating it …’. Similarly, in Crump, French CJ had made clear that while the legislative intervention in parole ‘altered a statutory consequence of the sentence. It did not alter its legal effect’ (at [36]).

The Court dismissed the ‘more specific’ ad hominem character of s 74AA as ‘a distinction without a difference’ (at [25]). Nonetheless, the rule of law, contested as it is, still favours general laws over those aimed at individuals. In Momcilovic, Crennan and Kiefel JJ put hope into the notion that the rule of law could ‘imply a limitation’ on State legislation. While the principle was unspoken in Knight, the Court was quick to dismiss the constitutional relevance of the legislative targeting of Knight.  In Nicholas, Gaudron J commented that ‘[i]f legislation which is specific rather than general is such that, nevertheless, it neither infringes the requirements of equal justice nor prevents the independent determination of the matter in issue, it is not, in my view, invalid’. However, the Court in Knight was careful to not rule out the significance of ad hominem legislation full stop.  They noted, citing Nicholas and Liyanage that, ‘the party-specific nature of legislation can be indicative of the tendency of that legislation to interfere with an exercise of judicial power’ (at [26]) This suggests that ad hominem legislation may put a court on notice of the risk of legislative usurpation, a risk that did not materialise for Julian Knight.

Incompatibility

The Court held that it did not need to determine the second argument because sitting judicial officers had not been assigned parole board functions in considering Knight’s application under s 74AA. Regardless, following the path taken in Wilson, the Court concluded that s 74AA would be able to be read down so as to exclude a judicial officer from sitting should it be a function that would be invalid for a judge to exercise (at [37]).

Knight and the politicisation of parole

Recent high profile parole breaches around Australia, and the public and political responses to them, ensure that the future mirroring by States of provisions such as s 74AA is a likelihood.  Section 74AA was itself a more personalised blueprint of the NSW legislation upheld in Crump. South Australia, Western Australia, Queensland and New South Wales (along with the Commonwealth) also intervened in the action in Knight which suggests an interest if not also an intimation as to the policy’s likely future relevance.

It has long been recognised that justice policies are highly changeable, and these changes can have significant impact on the length of imprisonment actually served by prisoners, even more so for those detained for longer terms. In Crump French CJ highlighted that the very nature of parole meant that such changes could even see parliament eliminating parole entitlements (at [36]).

What Crump and now Knight highlight is the potential for even greater politicisation of parole.  This is most evident in the comment by the Victorian Premier that even without the introduction of s 74AA it was ‘extremely unlikely that Mr Knight would have been given parole’. In June, the Prime Minister announced that the risk of terrorism required greater control by State Attorneys-General of parole board decisions.  In the shadow of Kable, such options are all the more attractive to State Parliaments when, as Knight confirms, the executive sphere lacks the same constitutional limits of the Kable-guarded judicature.

It is far from certain, however, that there are no such limits. The Queensland Court of Appeal’s decision in Lawrence, and some by-the-way comments by members of the High Court in Totani and NAAJA suggest that there might prove to be more limits on such executive conferrals than State parliaments realise.

 

Dr Sarah Murray is an Associate Professor at the University of Western Australia.

Suggested citation:  Sarah Murray  ‘Knight’s Watch: Ad Hominem Parole Legislation Hits the High Courton AUSPUBLAW  (29 August 2017) <https://auspublaw.org/2017/08/knights-watch/>