Minogue v Victoria [2019] HCA 31: High Court on Validity of Victorian Parole Provision

Thursday 12 September 2019 @ 3.02 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

In Craig William John Minogue v State of Victoria [2019] HCA 31, decided on 11 September 2019, the High Court of Australia has unanimously held that section 74AB of the Corrections Act 1986 (Vic) ("the Act") is a valid provision.  Their Honours found that, given this finding, the question of the validity of section 74AAA of the Act did not arise in the circumstances of the current case.


On 12 July 1988, the plaintiff was convicted in the Supreme Court of Victoria of one count of murder, arising from the explosion of a car bomb in the vicinity of the Russell Street Police Complex on 27 March 1986. The explosion resulted in the death of a policewoman, Angela Rose Taylor, a constable in the Victorian police force.

As a result, the plaintiff was sentenced to imprisonment for life with a non-parole period of 28 years. On 30 September 2016, the plaintiff’s non-parole period expired and he made an application to the Adult Parole Board (“the Board”), which made a decision to proceed to parole planning.

However, before the Board could complete the performance of its function, the Corrections Act 1986 (Vic) (“the Act”) was amended by the insertion of section 74AAA, which provided that:

“. . . the Board must not make a parole order in respect of a prisoner convicted and sentenced to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless it is satisfied that the prisoner is in imminent danger of dying or is seriously incapacitated.”

The plaintiff’s application has consequently not yet been determined.  The plaintiff challenged the constitutional validity of section 74AAA (as in force at the time) in the High Court, and in Minogue v Victoria (2018) 92 ALJR 668; 356 ALR 363; [2018] HCA 27, the High Court found that section 74AAA did not apply to the plaintiff. 

The Act was further amended on 1 August 2018, by inserting a new section 74AB and substituting section 74AAA with a new version of the section.  The new section 74AB of the Act set out the conditions “for making a parole order for Craig Minogue".

One of the key conditions was that the Board may make a parole order in respect of the plaintiff:

". . . if, and only if" the Board is satisfied that the plaintiff ". . . 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", and the Board ". . . is further satisfied that, because of those circumstances, the making of the order is justified". 

Section 74AAA of the Act as substituted imposed the same conditions for making a parole order, but applied to any person convicted of murder where the victim was a police officer.

Basis of the Plaintiff’s Claim

The plaintiff commenced proceedings in the High Court to challenge the constitutional validity of section 74AB and, if it applied, section 74AAA.  The argument put forward by the plaintiff was that as he was not in imminent danger of dying, or seriously incapacitated, the provisions in their substantive operation and practical effect, legislatively re-sentenced him for the same crime. He argued that the re-sentencing was legislative punishment contrary to Chapter III of the Constitution (Cth).

The High Court’s Decision

In reaching its decision the High Court held that section 74AB was relevantly indistinguishable from the provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29. 

The Court found that section 74AB did not, in either its substantive operation or practical effect, impose additional or separate punishment on the plaintiff beyond the punishment imposed by the sentencing court in a way that involved the exercise of judicial power; see para [22] and [23] as follows: 

“[22] Thus, section 74AB did not replace a judicial judgment with a legislative judgment and neither the enactment, nor the substantive operation and practical effect, of s 74AB was a separate exercise of judicial power. Section 74AB is valid and is not contrary to Ch III of the Constitution.
[23] The fact that the restrictions in section 74AB apply only to a single named prisoner, as in Knight, does not alter those conclusions. Of course, "[t]here are circumstances in which the party-specific nature of legislation can be indicative of the tendency of that legislation to interfere with an exercise of judicial power" but, like the position in Knight, this is not one of them.”

The majority considered that section 74AB did no more than alter the conditions to be met before the plaintiff could be released on parole.  The Court concluded that section 74AB was valid and applied to the plaintiff. Because of this it was the majority's view that it was therefore, unnecessary for the Court to consider the validity of section 74AAA. 

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Craig William John Minogue v State of Victoria [2019] HCA 31 (11 September 2019), Minogue v State of Victoria [2018] HCATrans 260 (13 December 2018), Court Summaries and notes of short particulars

A U-turn on the road to redemption: Craig Minogue and the Russell Street bombing (Paul Daley, The Guardian, 26 Aug 2018)

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