In 2021 the Corrective Services Act 2006 (Qld) ‘CSA’ was amended to insert what is publicly known as ‘no body, no parole’ provisions to bring Queensland in line with other states amid political pressure.
Relevant sections 175L-175U, 176B, 180(2)(d) and 193A ensure the Parole Board of Queensland must refuse parole for prisoners convicted of a homicide offence where the body or part of the body of the victim is unrecovered. Refusal remains mandatory until such a time as there is ‘satisfactory cooperation’ displayed by the offender. This means that where an offender convicted of a relevant homicide offence refuses to co-operate, they will be imprisoned indefinitely.
Section 175L of the new provisions was recently tested in the High Court where plaintiff, Cherry, sought a finding that it was unconstitutional.
Cherry was convicted of two counts of murder in 2002 and was sentenced to life imprisonment with a mandatory minimum of 20 years served. The body of Cherry’s second victim is yet to be recovered. He applied for parole in 2022 but was refused under the new provisions.
Cherry relied on the argument that section 175L interfered with the exercise of judicial power by allowing the parole board to essentially alter the punishment imposed by a court.
The Court found that:
“the fixing by the sentencing judge of a minimum term of imprisonment of 20 years was simply the factum upon which Queensland’s parole laws were to apply” [45].
It was further considered that the purpose of the amendments was not punitive but rather:
“to encourage cooperation in identifying the location of the body or remains of a victim” [50].
As such the Court found that section 175L (and by extension no body, no parole orders) were constitutional.
Cherry is the most recent in a string of cases that emphasise the Court’s willingness to incentivise offenders to co-operate with authorities as a matter of public interest. (see for example: R v Thompson (1994) 76 A Crim R 75 and R v Gladkowski [2000] QCA 352).