15.
41 Kiefel CJ, Bell, Keane, Nettle and Gordon JJ confirmed the wellestablished distinction between a judge exercising judicial power in sentencing, and the executive determining whether an eligible prisoner may be given parole. Once a person is sentenced, the judicial power is "spent" and the responsibility for a prisoner's future release "passes to the executive branch".[1] In Minogue, s 74AB did not in any way touch upon or affect the plaintiff's sentence, which remained, at all times, life imprisonment. At best the fixing of a non-parole period, being the "factum" upon which a regime for the grant of parole might apply, gave a prisoner no more than the "hope" of earlier conditional release.[2] Importantly, their Honours accepted that it was valid for a legislative regime regarding the grant of parole to be varied from time to time.[3] Also importantly, it was again affirmed that a law that made parole more difficult to secure did not constitute a form of punishment, let alone additional punishment.[4] As Gageler J observed in agreeing with Kiefel CJ, Bell, Keane, Nettle and Gordon JJ:[5]
"Deprivation of liberty consequent upon a determination of criminal guilt is, without more, an exercise of judicial power. 'Punishment', in the generic sense of State infliction of involuntary hardship or detriment, is not".
42 Edelman J also upheld the validity of s 74AB. His Honour characterised the essential purpose of that provision as "the prospective protection of the public" rather than as a form of additional punishment.[6] His Honour then said:[7]
"The issue is whether s 74AB of the Corrections Act is an exercise of judicial power. Section 74AB does not bear sufficient hallmarks to be
- ↑ (2019) 268 CLR 1 at 15–16 [14] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
- ↑ (2019) 268 CLR 1 at 16–17 [16] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
- ↑ (2019) 268 CLR 1 at 17 [17] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
- ↑ (2019) 268 CLR 1 at 18 [21] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
- ↑ (2019) 268 CLR 1 at 20–21 [31]. See also Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12 [17] per Gleeson CJ.
- ↑ (2019) 268 CLR 1 at 25 [45].
- ↑ (2019) 268 CLR 1 at 27 [48] (footnotes omitted).
