News: High Court OKs a one-person law

On 12th September 1996, a 4-2 majority of the High Court struck down a NSW law that applied to only one person:

Gregory Wayne Kable is the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable.

The law allowed a Supreme Court judge to detain Kable (and only Kable) for six months at a time, if the judge thought that Kable was still a danger to the community. Today, nearly twenty-one years later, the High Court unanimously rejected a challenge to a Victorian law that applies to only one person:

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.

That law forbids Victoria’s parole board from ever releasing Knight (and only Knight, who perpetrated 1987’s Hoddle St Massacre), even if the parole board thinks he is no danger to the community. Kable’s law was struck down because it placed his freedom in the hands of the courts. Knight’s was upheld because it left his freedom in the hands of no-one at all.

When Kable was decided in 1996, some hoped it was the start of judicial scrutiny of laws that sought to impose punitive outcomes by unjust means – in part, this was because the theory formally relied on in 1996, that the Kable law damaged the courts’ integrity, was so unconvincing. But others worried that Kable would result in worse outcomes, because parliaments would seek other, less just, ways to lock people up. Those latter worries have been borne out in two ways. First, Australia’s parliaments have readily embraced the option of giving courts general powers to lock up whole categories of people (mainly sex offenders) after they’ve served their sentences; such general powers apparently didn’t damage the courts. Second, Australia’s parliaments have more lately embraced the alternative option of locking people up without any involvement of the courts at all, because that also leaves the courts undamaged (as well as impotent.) The High Court has readily upheld both sorts of schemes to detain rapists and control bikies, only sometimes picking at the statutes’ details. Today’s decision confirms that what could have been a line in the constitutional sand – a one person law, like the 1996 Kable law – can now be safely crossed. As (now) Victoria Attorney-General Martin Pakula observed during the debate on the Knight law:

There are some people in jail in the state of Victoria who have committed heinous crimes and are not serving sentences of life with no parole — they are serving sentences of life with a minimum of 30 or 35 years — and no doubt when those individuals become eligible for parole there will be an expectation of the government of the day, whoever that might be, that it legislate to remove the possibility of that person being granted parole.

Indeed, Victoria considered such a bill last year, in relation to Russell St bomber Craig Minogue. And the fact that the Commonwealth, NSW, Queensland, South Australia and Western Australia all intervened in Knight’s matter in favour of Victoria suggests that other Australian parliaments crave the option to follow Victoria’s lead.

At this juncture, it is worth considering whether the Kable doctrine has been a positive development in Australia law. Frankly, I cannot see any positives at all. When the Kable law passed in 1996, the entire NSW parliament anguished over its morality and fairness, in a lengthy and emotional debate. When the Knight law passed in 2014, only five members spoke on it and most addressed only its constitutionality under Kable – a tepid discussion matched only by today’s brief, unanimous and (as is now typical) lifeless joint judgment. Far from putting an end to extraordinary punitive legislation, such laws have now become ordinary. Of the six occasions when the Kable doctrine has been applied to strike legislation down, only one law has not reappeared (usually in worse form.) Even Kable himself (who was already freed, thanks to the Supreme Court, at the time of the 1996 judgment) was denied compensation for his (as it turns out, unlawful) post-sentence imprisonment. Worst of all, in their (as it turns out, unfounded) fears that the Court would strike down a one-person non-parole law, both NSW and Victoria have enacted more general bans on parole, in each case sweeping in people who committed their crimes as children into inhumane ‘rot in their cells’ regimes. In short, the Kable decision has made no-one’s life better and has made at least a handful of people’s lives immeasurably worse, as well as failing to stop (if not outright encouraging) the worst in Australia’s politicians. In hindsight, 12th September 1996 numbers amongst the darkest days in Australian criminal justice.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

5 thoughts on “News: High Court OKs a one-person law

  1. Or the HCA could’ve decided that criminal justice is exclusively the jurisdiction of courts (lest their integrity be affected). This any such law would be unconstitutional.

    Gageler J has hinted at this. NAAJA [308] ish from memory

    • Yes, he has, as did Gummow in Totani. Or they could have been more stringent about non-judicial ‘shadowing’ of judicial decisions (the concern in Lawrence.) But, at least in the area of parole, these arguments no longer have legs. Unfortunately, the High Court’s current approach to joint judgments means that there is no way to gauge if some judges are still open to these sorts of arguments in other contexts.

      • Let me make the contrary argument here.

        This is not a bill of attainder situation; Knight was judicially convicted and sentenced to life in prison with no automatic entitlement to or expectation of parole. A parole board is given the power by the legislature, not the judiciary, to potentially let Knight out early; the Victorian government’s Act prevents Knight being let out early by a parole board, closing a door which the legislature of the day rather than the judiciary left open with the sentencing laws of the time regarding non-parole periods.

        One would hope that the parole board could have reached the conclusion on its own that Knight is not fit to be granted parole, obviating the need for this Act, but for the protection of public confidence in justice (particularly given a spate of highly public cases involving violent acts by people on parole) one can understand why the government wanted to and needed to give the public certainty in the case of Knight.

        This is not a dark day for criminal justice; it is the opposite. The legislature fixing a mistake which has led to injustices in the past where people have been given parole too easily, rather than risking another such injustice.

        Now, the anti-bikie laws and similar, I can see arguments there for legislative overreach, but I won’t lose any sleep over Julian Knight.

        • Actually, it was September 12 1996 (the day of the Kable decision) that I called a dark day, not yesterday. I’m not losing sleep over Knight either.

          I do think, though, that there is reason to be concerned about what happened procedurally to Knight. He pled guilty and the prosecution did not oppose Hampel J setting a non-parole period. If, as seems quite possible, there was a plea bargain involved there, then Knight has been robbed of his side of the bargain by this legislation. (Some of the (handful of) speeches in parliament when the Knight bill passed were founded on a misconception (probably from Wikipedia) that Hampel J had no discretion to imprison Knight for life without parole. I think that made it easier to conclude that the MPs were righting a ‘mistake’, rather than overturning a decision made following submissions from both sides in open court.)

          I’m more concerned about the future of parole, though, if one-person non-parole laws become a habit. If I was advising a notorious client on whether to plea bargain now, I’d have to warn them that any bargain could be wiped out in decades by a one person law. Is that a good situation?

          But my broadest concern (and also one argued by Gabrielle Appleby) is that Kable narrows the range of options available to parliaments, both by making it hard for them to use courts as a way of protecting the community, and also by being such a hopelessly vague and uncertain doctrine that parliaments are limited to a handful of ‘HCA approved’ methods, such as the ‘nearly dead’ formula used against Knight (first endorsed in Baker and then Crump.)

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