Knight v Victoria [2017] HCA 29: Parole and Judicial Power

Thursday 17 August 2017 @ 11.42 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

In Julian Knight v The State of  Victoria & Anor [2017] HCA 29 (17 August 2017) the High Court of Australia has in a unanimous decision held, answering a question posed in a special case, that section 74AA of the Corrections Act 1986 (Vic) (the Corrections Act) is not invalid on the ground that it is contrary to Chapter III of the Commonwealth Constitution


The Plaintiff (Julian Knight) pleaded guilty on 10 November 1988 to seven counts of murder and 46 counts of attempted murder and was sentenced by Hampel J in the Supreme Court of Victoria to life imprisonment with a minimum term of 27 years [see R v Knight  [1989] VicRp 62; [1989] VR 705 (10 November 1988)]. 

The minimum term of  Plaintiff's sentence expired on 8 May 2014 and on 2 April 2014 the Victorian Government's Corrections Amendment (Parole) Act 2014 (Vic), which added section 74AA into the Corrections Act, commenced operation. Section 74AA of the Corrections Act provides that the Adult Parole Board (the Board) may make an order for the release "of the prisoner Julian Knight if, and only if," he is in imminent danger of dying or seriously incapacitated and does not pose a risk to the community.

The Plaintiff who was not currently in imminent danger of dying or seriously incapacitated on 11 March 2016 applied to the Board, asking that it make an order that he be released on parole. Following consideration of the application, the Board determined that it should obtain reports pursuant to section 74AA(3) of the Corrections Act and to not make any order that the plaintiff be released on parole.

The Plaintiff argued that section 74AA was inconsistent with Chapter III of the Commonwealth Constitution which deal with judicial powers and was invalid for two reasons: 

  • First, as a matter of substance, section 74AA operates to interfere with a particular and readily identifiable exercise of judicial power by the Supreme Court of Victoria, namely the sentence imposed on the Plaintiff by Hampel J following the Plaintiff’s guilty plea and conviction; and
  • Second, section 74AA authorises Victorian judicial officers to participate in a decision making process that undermines their judicial independence from the executive rendering the courts on which they sit unsuitable to be repositories of federal judicial power.

[on this see also Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24]

Special Case before the High Court

On 14 November 2016 Gordon J referred the Special Case for consideration by the Full Court on the key question:

  • Is section 74AA of the  Corrections Act invalid on the ground it is contrary to Chapter III of the Commonwealth Constitution?

Notices of Constitutional Matter were served and the Attorneys General for the Commonwealth, New South Wales, Queensland, South Australia, and Western Australia have filed Notices of Intervention.

The High Court's Decision

In its decision the High Court held that section 74AA did not interfere with the sentences imposed on the plaintiff by the Supreme Court.  The question whether or not  the plaintiff would be released on parole at the expiration of the non-parole period was outside the scope of the exercise of judicial power constituted by imposition of the sentences.  

Further, the High Court held that, because the Board had not in fact been constituted, and did not need to be constituted, to include a current judicial officer, it was unnecessary and inappropriate to determine whether section 74AA would be invalid in circumstances in which the function conferred by section 74AA might be sought to be exercised by a division of the Board which included a judicial officer.

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Julian Knight V The State Of Victoria & Anor [2017] HCA 29 (17 August 2017)

Knight v State of Victoria & Anor [2017] HCATrans 61 (28 March 2017)

R v Knight  [1989] VicRp 62; [1989] VR 705 (10 November 1988)

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