Challenging Human Rights: Examining One-Person Parole Laws and the Need for Rehabilitation in Criminal Justice

On 24 August 1988, Justice Frank Vincent, sitting in the Supreme Court of Victoria, sentenced Craig Minogue to life imprisonment, with a minimum term of 28 years, for ‘one of the most serious criminal actions ever to take place in this community’.

Justice Vincent was referring to the Russell Street bombing of 27 March 1986, which resulted in the death of a police officer named Angela Taylor, of whose murder Minogue had been convicted.

Justice Vincent declined to provide Minogue’s co-offender, Stan Taylor, with a minimum term of imprisonment. However, his Honour found that a life without parole sentence was unsuitable in the case of Minogue.

Because of Minogue’s youth (when sentenced, he was 23 years of age), his prospects of rehabilitation and Taylor’s dominance over him, Justice Vincent found that there ‘should be some disparity’ between his and Taylor’s sentences.

In 2016, when Minogue became eligible and applied for parole, the Victorian government had a problem. There was evidence that, during his time in prison, Minogue had taken impressive steps to rehabilitate himself. He had become literate and completed a PhD.

It wasn’t obvious that his application for parole would fail, but sections of the media ran a vocal campaign against him. They argued that, because Minogue had been convicted of murdering a police officer, he should spend the rest of his days in prison.

The Victorian government’s reaction was to insert section 74AB into the Corrections Act 1986 (Vic). Section 74AB is headed ‘Conditions for making a parole order for Craig Minogue’. Section 74AB(3) provides that Minogue is to be granted parole only if the Adult Parole Board is satisfied that he is ‘in imminent danger of dying or is seriously incapacitated’ and further stringent conditions are met. In other words, it takes a meaningful prospect of parole away from one named prisoner.

Is a law such as 74AB constitutionally valid? Or does it amount to an invalid exercise by Parliament of the exclusively judicial function of setting a sentence for past criminal offending?

The High Court has found that such laws are constitutionally valid. In so ruling, their Honours have held that laws such as 74AB do not alter the sentences that people like Minogue are serving.

In other words, Minogue’s punishment is no more severe: his sentence remains one of life imprisonment. All that has been altered are the conditions that Minogue must satisfy if he is to be granted parole.

In my doctoral research and a number of journal articles, I have argued that such reasoning is unpersuasive. I have contended that Minogue’s punishment has been altered.

Due to 74AB, he is now serving the life without parole sentence that Justice Vincent expressly refrained from imposing on him, rather than the life with parole sentence that his Honour in fact imposed.

In other cases, the High Court has used excessively formalistic reasoning when dismissing challenges by prisoners to harsh laws that, according to those prisoners, violate the separation of powers created by the Commonwealth Constitution.

Why has the Court done this? I have argued that the answer to this question is that, in jurisdictions or cases where courts lack the authority to interpret and apply human rights guarantees, judges will usually take a cautious approach.

In the face of a choice about how to settle a particular controversy, judges will usually settle it in a manner that will create no perception that they are deciding cases on the basis of their own views about what justice requires.

Where a charter of rights is present in a jurisdiction, will that charter facilitate different results in such cases? Maybe, but not necessarily. After all, there is a charter of rights in Victoria, yet that charter had absolutely no effect on s 74AB of the Corrections Act.

That is because the Victorian government exercised the power, granted to it by s 31 of the Victorian Charter, to declare expressly in s 74AB that the Charter has no application to that section.

Nor will the position necessarily be different if Parliament lacks the power to disapply charter guarantees. No such power exists in the US, yet a politicised Supreme Court has imposed few restrictions on harsh punishments.

Rather, it seems that the power is largely with us. If we decide that laws such as section 74AB offend our sense of fairness – that is, if we decide as a community that there are certain things that the government should not be able to do – there might be an end to the populist punitiveness that has plagued criminal justice policy in recent decades.

Such a moment seems a long way off, but the current approach must be challenged. Whatever they have done, prisoners should not be treated as sub-human objects of state power. Efforts should be made to rehabilitate them. And when those efforts succeed, they should be reintegrated into the community.