The High Court has determined a special case on whether s 74AA of the Corrections Act 1986 (Vic) is invalid as contrary to ch III of the Constitution, holding that it is not. The plaintiff pleaded guilty to seven counts of murder and 46 counts of attempted murder, and was sentenced to a total non-parole minimum term of 27 years, which expired on or around 8 May 2014. A month before, the Parliament of Victoria enacted s 74AA, which purported to prevent the Adult Parole Board from releasing the plaintiff, who is named in the section, unless it is satisfied that the plaintiff is in imminent danger of death or is seriously incapacitated and thus unable to harm any person. The plaintiff brought a special case before the High Court, contending that the section was invalid as contrary to ch III, namely for breaching the Kable doctrine: a law that substantially impairs the institutional integrity of a court so as to make that court unable to fulfil its role as a repository of federal jurisdiction under ch III, is invalid (at [5]).

The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) unanimously dismissed this claim and the plaintiffs arguments, answering the central question in the special case ‘no’.

The plaintiff’s first argument was that s 74AA interferes with the Victorian Supreme Court’s power to impose sentences because its practical operation is to replace a ‘party-specific judicial judgment’ about eligibility for parole with a party-specific legislative judgment on the same matter (at [23]). The High Court rejected that argument on the basis that neither the legal form nor practical operation of the section interfered with VSC sentencing. Their Honours rejected the plaintiff’s invitation to distinguish Crump v NSW [2012] HCA 20, in which the High Court held that substantially similar provision was valid, on the basis that s 74AA targets him alone. That specificity was a ‘distinction without a difference’: neither section impeached, set aside, altered or varied the sentence of the plaintiff (at [24]–[25]). While some party-specific provisions can indicate a tendency of the legislature to interfere with judicial power, this was not such a case: the original sentence provided the authority to imprison the plaintiff for the term of his natural life, and the minimum sentence merely set the period during which the plaintiff would not be eligible for parole and did not say anything about whether he would be released on parole (at [26]–[28]). Whether or not the plaintiff would be paroled at the end of the minimum term was ‘simply outside the scope’ of the exercise of judicial power by the sentencing judge, and while s 74AA made it ‘more difficult’ for the plaintiff to obtain a parole order, it did not contradict the original minimum term: ‘The section did not replace a judicial judgment with a legislative judgment. It does not intersect at all with the exercise of judicial power that has occurred.’: at [29].

The Court then rejected the plaintiff’s second contention; that s 74AA enlists judicial officers who are members of the Parole Board in a function that is repugnant or incompatible with the exercise of federal jurisdiction by the courts on which those members sit. Because the Parole Board is not currently constituted to include a judicial officer, and because the statute does not require that a judicial officer sit on the board for the purposes of performing its functions under s 74AA, it would be unnecessary and inappropriate to determine whether it would be invalid if a judicial officer were sitting on the Board (at [30]–[37])