Obiter

Preventative Detention: No Body-No Parole Prisoner

Preventative Detention: No Body-No Parole Prisoner

By Kirstene Groth

Cherry v Queensland [2025] HCA 14

In this special case Cherry v Queensland,1 the High Court was questioned on the constitutional validity of Queensland’s ‘no body-no parole’ law.

COURT: High Court of Australia (Full Court) (Gageler CJ, Gordon, Edelman, Stewart, Gleeson, Jagot and Beech-Jones JJ).

PARTIES: Cherry (Plaintiff), State of Queensland (Defendant).

PROCEDURAL HISTORY: In 2002, Cherry was convicted of two murders in the Supreme Court of Queensland, sentenced to life imprisonment, with parole eligibility after 20 years.2 In 2004, Cherry unsuccessfully appealed in the Court of Appeal.3 In 2014, application to extend time to file granted, but application to reopen sentencing proceedings dismissed.4

FACTS:

  1. Cherry was convicted of two murders with one victim’s body (his step-daughter) never found.5 He is classified as a ‘no body-no parole prisoner’ pursuant to s 175C of the Corrective Services Act 2006 (Qld) (‘CS Act’).6
  2. In 2022, Cherry applied for parole before serving 20 years. The parole board issued a ‘no cooperation declaration’ in 2023 and refused the application.7 The parole board president has not made a ‘restricted prisoner declaration’.8
  3. Cherry sought declarations that ss 175L and 175E of the CS Act are constitutionally invalid, relying on the Kable principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (‘Kable‘).9

QUESTIONS:

The following questions were posed to the High Court for determination:10

  1. Is s 175L of the CS Act invalid because it enables the Queensland Executive to impermissibly interfere with the exercise of judicial power by State Courts, contrary to the principle established in Kable?11
  2. Is s 175E of the CS Act invalid because it enables the Queensland Executive to impermissibly interfere with the exercise of judicial power by State Courts, contrary to the principle established in Kable?12
  3. If the answer to question (a) is ‘yes’, does s 193A of the CS Act as in force before the commencement of the amendments made by Pt 3 of the Police Powers and Responsibilities and Other Legislation Amendment Act 2021 (Qld) (including omissions and substitutions) apply to the plaintiff?13

APPLICABLE LAW:

Corrective Services Act 2006 (Qld) — Parole

No body-no parole prisoner:

Chapter 5 of the Corrective Services Act 2006 sets out a series of provisions regulating the grant of parole in Queensland.14 Section 175C encourages the prisoner to cooperate with the Queensland Parole Board, as parole cannot be granted unless the board is satisfied that the prisoner has identified the location or last known location of every part of the victim’s body or remains.15

Section 175C defines a no body-no parole prisoner:

(a) the prisoner is serving a period of imprisonment for a homicide offence; and
(b) either—
(i) the body or remains of the victim of the offence have not been located; or
(ii) because of an act or omission of the prisoner or another person, part of the body or remains of the victim has not been located.16

Section 175B, the victim’s location means:

(a) the location, or the last known location, of every part of the body or remains of the victim of the offence; and
(b) the place where every part of the body or remains of the victim of the offence may be found.17

Section 175D, a prisoner is a restricted prisoner if the prisoner has been sentenced to life imprisonment for:

(a) a conviction of murder and the person killed was a child; or
(b) more than 1 conviction of murder; or
(c) 1 conviction of murder and another offence of murder was taken into account; or
(d) a conviction of murder and the person has on a previous occasion been sentenced for another offence of murder.18

No cooperation declaration:

Section 175L allows the the parole board to issue a no cooperation declaration:

If the parole board is not satisfied a no body-no parole prisoner has given satisfactory cooperation, the parole board must make a declaration under this division (a “no cooperation declaration”) about the prisoner.19

This declaration prevents the prisoner from applying for parole unless they later demonstrate satisfactory cooperation or cease to be classified as a ‘no body-no parole’ prisoner.20

Restricted prisoner declaration:

Section 175E, in making a restricted prisoner declaration:

The president may make a declaration under this division (a “restricted prisoner declaration”) about a restricted prisoner.21

If such a declaration is made, the prisoner is only eligible for ‘exceptional circumstances parole’ (e.g. diagnosed disease).22

LEGAL PRINCIPLES:

The Kable Principle

The Kable principle was established in the landmark case of Kable v Director of Public Prosecutions (NSW),23 which states in essence:

[A] State Parliament cannot confer on a State court a function that is incompatible with, or repugnant to, the exercise of the judicial power of the Commonwealth.24

Gregory Kable fatally stabbed his wife and was sentenced to five years imprisonment for manslaughter.25 In prison, he sent threatening letters, receiving an additional 16 months imprisonment. Denied parole, Kable served his full term and was released in 1994.26 In a ‘law and order’ election, the NSW Parliament passed the Community Protection Act 1994 (NSW) (the ‘Act’), targeting solely Gregory Kable, allowing preventative detention for public threats.27

Kable argued that the Act required a court to exercise non-judicial power and that this breached the separation of powers.28 The Act gave the NSW court power which was incompatible with Ch III of the Constitution.29

In Kable,30 the High Court held (4:2) that the Act was an invalid law allowing preventative detention for public threats and unconstitutional.31 The High Court’s reasoning was that the Act had conferred a power upon the NSW Supreme Court which was incompatible with its role in the federal judicial structure (per Toohey, Gaudron, McHugh, Gummow JJ; Dawson J and Brennan CJ dissenting).32

Kable33 established that State courts, particularly those exercising federal jurisdiction, cannot be vested with powers that are incompatible with their role as independent judicial bodies under Ch III of the Constitution.34

Separation of Powers and Judicial Power

Section 71 (Judicial power and Courts)35 is central to the doctrine of the ‘separation of powers’ in the Constitution, ensuring that the judicial power of the Commonwealth remains exercised exclusively by the courts established under Ch III,36 separating it from the legislative power (Ch I) and the executive power (Ch II), defining strict separation of powers.37 This separation prevents the Parliament or the Executive from exercising judicial functions.38

COURT’S REASONING:

Validity of section 175L?

The High Court determined that section 175L of the CS Act does not alter or increase a prisoner’s sentence and a ‘no cooperation declaration’ does not impose additional punishment, but affects parole eligibility.39 The High Court set out four propositions in support of these conclusions and the validity of s 175L.40 First at [45]:

The making of the no cooperation declaration did not change the plaintiff’s sentence (being at all times one of life imprisonment); nor did it increase it. The plaintiff’s eligibility for parole has always been dependent on the applicable legislative scheme, which may validly be amended from time to time. Indeed, it is open for a State Parliament to abolish the availability of parole entirely, a proposition which the plaintiff accepted.41

Second at [46]:

[T]he plaintiff’s attempt to distinguish Crump, Knight and Minogue on the basis that he is not eligible to apply for parole by reason of s 180(2)(d) is a distinction without a difference. As a matter of substance – and it is the substance that matters – there is no difference between a law which limits the conditions for a grant of parole and a law which limits the eligibility of a prisoner to apply for parole, no matter the extent of the limitation. Practically, the consequence is the same: it is to confine the power of the board to grant parole to a prisoner.42 [footnotes omitted]

Third at [47]:

[T]he observation of Edelman J in Minogue, … does not apply to s 175L. That provision does not purport to adjust the factum of the plaintiff’s minimum period of imprisonment in any way. It remains 20 years. Nor, for the reasons set out below, can it be said that s 175L was enacted for the purposes of imposing additional punishment on the plaintiff.43 [footnotes omitted]

Fourth at [48]–[50], the purpose of s 175L:

[T]he purpose of s 175L is to encourage a prisoner to cooperate with the State in recovering the body or remains of a victim of murder. Recovery of the victim’s body or remains serves the public interest in providing some comfort and certainty to the families and friends of the victim. That is plainly a legitimate purpose for a State to pursue in calibrating a regime for the grant of parole. It is not a purpose that is punitive in any sense relevant to Ch III of the Constitution.

Such a non-punitive purpose is discernible from the language of the CS Act itself. No cooperation declarations may only be made in respect of a no body-no parole prisoner, which, as set out above, is confined to a prisoner convicted of a homicide offence where the body or remains of the victim have not been located. Such a declaration may only then be made when the parole board is satisfied that the prisoner has failed to give satisfactory cooperation about locating a victim’s body or remains. If the prisoner does give satisfactory cooperation, or the victim’s body or remains are otherwise located, the declaration ceases and they may become eligible for parole.

Whilst the Explanatory Notes for the Corrective Services (No Body, No Parole) Amendment Bill 2017 (Qld) (which introduced former s 193A, being the predecessor to s 175L) did refer to a punishment lacking in retribution if a convicted killer were to be released without telling where the victim’s body might be found, that is a description of a consequence that might have arisen but for the enactment of that predecessor provision. But it is not a description of the purpose of that provision or its successor. That purpose is to encourage cooperation in identifying the location of the body or remains of a victim. The plaintiff’s submissions in this respect ignore other passages in those notes that describe the non-punitive purpose of former s 193A. Thus, the following appears in the passage immediately before that relied upon by the plaintiff:44

“The [Queensland Parole System Review Report] expressly acknowledged that in the case of homicide offences, withholding the location of a victim’s body or remains prolongs the suffering of the families and all efforts should be made to attempt to minimise this sorrow.”45

The High Court concluded at [53], that s 175L remains a valid law.46

Validity of section 175E?

The High Court declined to answer the question regarding the constitutional validity of s 175E at [54]:

The [Queensland Parole Board] president has not made a restricted prisoner declaration concerning the plaintiff, and there is no agreed fact that the president will ever do so. In these circumstances, the appropriate prudential approach to answering questions in a special case concerning the constitutional validity of a law is for the Court to decline to answer the hypothetical question concerning s 175E.47

Former s 193A of the CS Act?

The High Court at [55]: ‘as s 175L is a valid law, it is unnecessary to answer the question posed concerning former s 193A of the CS Act.’48

DECISION:

The High Court unanimously held that section 175L of the Corrective Services Act 2006 was not invalid (per Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).49 Section 175L did not in any way operate to alter or increase the plaintiff’s sentence, nor impose upon him additional punishment;50 and ‘it is not a purpose that is punitive in any sense relevant to Ch III of the Constitution.’51

The purpose of s 175L is to encourage a prisoner to cooperate with the State in recovering the body or remains of a victim of murder. Recovery of the victim’s body or remains serves the public interest in providing some comfort and certainty to the families and friends of the victim: at [48].52

The High Court declined to respond on the validity of section 175E of the Corrective Services Act 2006, in circumstances where the Queensland Parole Board President had not yet made a ‘restricted prisoner declaration’ concerning the plaintiff, and there was no agreed fact that the president would ever do so.53

FOOTNOTES:

  1. Cherry v Queensland [2025] HCA 14 (‘Cherry‘). ↩︎
  2. Ibid [21]. ↩︎
  3. Ibid; R v Cherry [2004] QCA 328 (Court of Appeal). ↩︎
  4. The Queen v Cherry [2014] QSC 58 (McMeekin J). ↩︎
  5. High Court of Australia, Cherry v State of Queensland [2025] HCA 14, ‘Judgment Summaries’ (Web Page, 10 April 2025) <www.hcourt.gov.au>. ↩︎
  6. Cherry (n 1) [21]. ↩︎
  7. Ibid [22], [9]; High Court of Australia (n 5). ↩︎
  8. Cherry (n 1) [23]. ↩︎
  9. High Court of Australia (n 5); Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (‘Kable‘). ↩︎
  10. Cherry (n 1) [56]. Note that question (d) was: ‘Who should pay the costs of the proceeding?’. The High Court answered that Cherry should pay the costs, cited in Cherry. ↩︎
  11. Cherry (n 1) [24]. ↩︎
  12. Ibid. ↩︎
  13. Ibid. The former s 193A of the CS Act, introduced by the Corrective Services (No Body, No Parole) Amendment Act 2017 (Qld), conferred on the parole board a requirement to refuse parole in circumstances similar to those which now found the making of a no cooperation declaration pursuant to s 175L. It was replaced with the present s 193A by the Police Powers and Responsibilities and Other Legislation Amendment Act 2021 (Qld), see Cherry (n 1). ↩︎
  14. Cherry (n 1) [5]. ↩︎
  15. See Cherry (n 1). ↩︎
  16. Corrective Services Act 2006 (Qld) s 175C (‘CS Act‘). ↩︎
  17. Ibid s 175B. ↩︎
  18. Ibid s 175D. ↩︎
  19. Ibid s 175L. ↩︎
  20. Cherry (n 1) [21]. ↩︎
  21. CS Act (n 16) s 175E. ↩︎
  22. Ibid; CS Act (n 16) s 176. The prisoner has a diagnosed illness or disease, is in imminent danger of dying, or is not able to physically hurt another, discussed in Cherry (n 1) [20]–[21], citing R v Cherry [2004] QCA 328. ↩︎
  23. Kable (n 9) cited in George Williams, Sean Brennan and Andew Lynch, ‘Blackshield and Williams Australian Constitutional Law and Theory‘ (Federation Press, 6th ed, 2014) 544–551. ↩︎
  24. Kable (n 9) [14]–[15]. ↩︎
  25. Rule of Law Education Centre, Kable and the Rule of Law, ‘Case Note: Kable v Director of Public Prosecutions (NSW) [1996] HCA 24’ (Web Page, 10 April 2025) <www.ruleoflaw.org.au> (‘Rule of Law Education Centre‘). ↩︎
  26. Ibid. ↩︎
  27. Ibid; Kable (n 9) per Dawson J at [4]: The object of the Act is ‘to protect the community by providing for the preventive detention … of Gregory Wayne Kable’; See, also Kable (n 9) [2] (Brennan CJ). ↩︎
  28. Australian Constitution Centre, High Court Case Study, ‘The Powers of Court and State’ (Web Page, 10 April 2025) <www.australianconstitutioncentre.org.au>. ↩︎
  29. See ibid; Australian Constitution c iii. ↩︎
  30. Kable (n 9). ↩︎
  31. See Rule of Law Education Centre (n 25); Kable (n 9). ↩︎
  32. Ibid. ↩︎
  33. See Kable (n 9). ↩︎
  34. Rule of Law Education Centre (n 25); Australian Constitution c iii. ↩︎
  35. Australian Constitution s 71. ↩︎
  36. Parliament of Australia, ‘Chapter III. The Judicature’ The Australian Constitution (Web Page, 16 June 2025) <https://www.aph.gov.au>; Parliamentary Education Office, ‘Separation of powers: Parliament, Executive and Judiciary’ (Web Page, 10 April 2025). ↩︎
  37. Ibid; Australian Constitution c i, c ii. ↩︎
  38. Ibid. ↩︎
  39. Cherry (n 1) [44]. ↩︎
  40. Ibid. ↩︎
  41. Ibid [45]. ↩︎
  42. Ibid [46]. ↩︎
  43. Ibid [47]. ↩︎
  44. Ibid [48]-[50]. ↩︎
  45. See Queensland, Legislative Assembly, Corrective Services (No Body, No Parole) Amendment Bill 2017, Explanatory Notes at 1, cited in Cherry (n 1) [50]. ↩︎
  46. Cherry (n 1) [53]. ↩︎
  47. Ibid [54]. ↩︎
  48. Ibid. ↩︎
  49. Ibid [53]. ↩︎
  50. Ibid [45], [53]. ↩︎
  51. Ibid [48]. ↩︎
  52. Ibid. ↩︎
  53. Ibid [54]; See High Court of Australia (n 5). ↩︎
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