10.
26 First, it was said that each provision does not merely restrict the conditions for the grant of parole; each denies the power to grant parole completely. Indeed, by reason of s 180(2)(c)–(d), neither a no body-no parole prisoner nor a restricted prisoner is eligible to apply for parole when respectively a no cooperation declaration or a restricted prisoner declaration has been made. In that respect, it was submitted, this Court's earlier decisions in Crump, Knight and Minogue were all distinguishable. In those three cases (which are addressed in greater detail below), the prisoner was eligible to apply for parole and the respective parole boards had the power to grant parole, albeit in extremely limited circumstances. Those cases had identified the non-parole period, which a sentencing judge determines, as the "factum" which a system of parole, which can change from time to time, may fix upon.[1] Here, it was said, the impugned legislation nullified the factum (a minimum period of imprisonment of 20 years) by denying it any operative effect.
27 Second, it was submitted that the text and context of ss 175L and 175E indicated that the object of each of the no cooperation and the restricted prisoner declarations is to punish prisoners more severely by reason of their past offending. In the case of s 175L, it was said that Parliament had determined that a prisoner warrants harsher punishment when the prisoner bears culpability for the inability to find a victim's body. Parliament's purpose in that respect was said to be recorded in the Explanatory Notes for the Corrective Services (No Body, No Parole) Amendment Bill 2017 (Qld), which introduced the predecessor to s 175L (i.e. former s 193A). The Explanatory Notes state:[2]
"The review report states that, 'a punishment is lacking in retribution, and the community would be right to feel indignation, if a convicted killer could expect to be released without telling what he did with the body of the victim. The killer's satisfaction at being released on parole is grotesquely
- ↑ Crump (2012) 247 CLR 1 at 26 [60] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Knight (2017) 261 CLR 306 at 323–324 [29] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ; Minogue (2019) 268 CLR 1 at 17 [16] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
- ↑ Queensland, Legislative Assembly, Corrective Services (No Body, No Parole) Amendment Bill 2017, Explanatory Notes at 1, quoting Queensland, Parole System Review: Final Report (2016) at 234–235.
