Cherry v. State of Queensland

Catchwords

Constitutional law – separation of powers – judicial power – where plaintiff convicted of two counts of murder in 2002 and sentenced to life imprisonment with mandatory minimum non-parole period of 20 years – where body of second victim never located – where in 2021 new provisions inserted into Corrective Services Act 2006 (Qld) (“CSA”) to amend “no body-no  parole” scheme and introducing new “restricted prisoners” regime – where President of Parole Board of Queensland may make “no co-operation” declaration under s 175L of  CSA in respect of a “no body – no parole” prisoner where remains of victim not found and where Board not satisfied prisoner has given “satisfactory co-operation” – where effect of declaration is that prisoner may not apply for parole notwithstanding parole eligibility date set by sentencing judge – where under s 175E of CSA President of Parole Board can make declaration about restricted prisoner (relevantly defined as prisoner sentenced to life imprisonment for more than one conviction of murder) – where effect of declaration is that prisoner may not apply for parole other than in “exceptional circumstances parole” under s 1767 – where plaintiff subject to “no co-operation” declaration and liable for “restricted prisoner” declaration if former lapses – validity of provisions under Ch 5, Divs 1 and 2 CSA – whether ss 175L and 175E CSA invalid as enabling Queensland executive to impermissibly interfere with exercise of judicial power by State Courts contrary to principle established in Kable v Director of Public Prosecutions (1996) 189 CLR 51.