In 1996, the High Court – in arguably its most significant constitutional law decision in recent decades – struck down a NSW law providing for the continued detention of one person, Gregory Wayne Kable, ruling that a number of aspects of that law, including its one-person nature, were incompatible with the institutional integrity of state Supreme Courts required by the federal constitution. Last year, the Court revisited that case, ruling out Kable’s claim that he was falsely imprisoned under the invalid law. It seems likely that the High Court will revisit that decision in another way this year. The Victorian Parliament today enacted a Bill barring parole except in cases of permanent physical incapacity or imminent death for just one person – the ‘prisoner Julian Knight’.
The law explains:
In this section a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.
Julian Knight is notorious for committing the ‘Hoddle Street massacre’. On the evening of 9 August 1987, he stood beside the busy Melbourne commuter street armed with a Ruger rifle and shot at drivers, passengers and police officers, killing seven and injuring a further nineteen. Fifteen months later, he was sentenced to life imprisonment, but Hampel J – citing his age (19), ‘prospects of rehabilitation’ and other mitigating factors, including a serious personality disorder – exercised his discretion under section 17(2) of Victoria’s then sentencing law to fix a non-parole period. Knight is eligible for parole on 8 May 2014.
When the Kable bill was passed in 1994, there was a lengthy debate, a divided vote, but no debate about its constitutionality. In Victoria two decades later, the Knight bill was passed unanimously, only five members spoke to it (here – a post-midnight debate – and here) and four of them (as well as the second reading speech) addressed its constitutionality. The government’s confidence in the law’s validity is founded on a 2012 High Court decision about a NSW law that imposed similar parole conditions and which the court held was constitutional because, in contrast to the Kable bill, it was directed to an executive body (the parole board) rather than a court. However, a report of the parliament’s Scrutiny of Acts and Regulations Committee (which I advise on Charter issues) noted that the NSW law was expressed in general terms that applied to about a dozen prisoners (whose sentencing judges had recommended ‘never to be released’), and questioned whether alterations to parole on a ‘case by case’ basis would infringe the integrity of Victorian courts when they exercise their current discretion on whether or not to set non-parole periods.
A challenge to the new law is inevitable. Indeed, Knight reportedly was already planning a High Court challenge to his earlier parole circumstances when the Bill was introduced. The Court’s decision will be closely watched, and not just by constitutional scholars. As Victoria’s Shadow Attorney-General observed in Parliament yesterday:
[W]e should not delude ourselves and imagine that this is the last time there will be a clamour from somewhere for a person who becomes eligible for parole to have that eligibility legislated away. There are lots of really bad people in prison at the moment, some of whom have lengthy non-parole periods — sometimes 30 years or 35 years. I do not intend to put their names on the record in this debate, but it would take only a brief Google search for members to discover to whom I might be referring.