Wednesday, 31 May 2023

Bills

Corrections Amendment (Parole) Bill 2023

Statement of compatibility

Matthew BACH (North-Eastern Metropolitan) (09:58): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (‘charter act’), I make this statement of compatibility with respect to the Corrections Amendment (Parole) Bill 2023.

In my opinion, the Corrections Amendment (Parole) Bill 2023 (the bill), as introduced to the Legislative Council, is compatible with human rights as set out in the charter act. I base my opinion on the reasons outlined in this statement.

Overview of bill

The bill will amend the Corrections Act 1986 to limit the circumstances in which the adult parole board may order the release on parole of Paul Denyer, a prisoner sentenced in 1993 to three consecutive sentences of life imprisonment for three counts of murder. On appeal in July 1994, Denyer was granted a non-parole period of 30 years (until 2023).

As Supreme Court Justice Frank Vincent rightly noted at the sentencing in December 1993, the murders of the three women were “almost beyond comprehension.”. Since that day, Paul Denyer has never shown any remorse for his conduct and has shown no sign during his time in prison that he is no longer a danger to society. Under the bill, the adult parole board can only make an order for the release on parole of the prisoner, Paul Denyer, if:

• an application for parole is made to the board by or on behalf of the prisoner;

• the board is satisfied, on the basis of a report prepared by the Secretary to the Department of Justice, that:

(a) the prisoner is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person; and

(b) the prisoner has demonstrated that he does not pose a risk to the community; and

• the board is further satisfied that, because of matters (a) and (b) above, the making of the order is justified.

Charter rights that are potentially relevant to the bill

Section 21 – Right to liberty

Section 21(1) of the charter act provides that every person has the right to liberty. Section 21(2) provides that a person must not be subject to arbitrary. detention. Section 21(3) provides that a person must not be deprived of his or her liberty except on grounds and in accordance with procedures established by law.

It is well established that the right to liberty of the person in section 21(1) is reasonably and justifiably limited where the person is deprived of their liberty under sentence of imprisonment after conviction for a criminal offence by an independent court after a fair hearing. The liberty of Paul Denyer has been limited by a court’s sentence of imprisonment. The bill does not increase that limitation caused by the court’s sentence.

This bill does not alter the head sentences of imprisonment imposed by the Supreme Court under which Paul Denyer is detained. It alters the conditions on which the adult parole board may order his release on parole during the currency of the sentence and after the expiration of a non-parole period. The bill does not require the cancellation of parole for Paul Denyer if it is granted.

A prisoner has no right or entitlement to release on parole, nor to the continuation of a particular legislative scheme for release on parole throughout their sentence. In Crump v. New South Wales (2012) 286 ALR 658 at 670, French CJ stated that: ‘The power of the executive government of a state to order a prisoner’s release on licence or parole or in the exercise of the prerogative may be broadened or constrained or even abolished by the legislature of the state’.

The changes to the parole scheme effected by this bill do not change the position that Paul Denyer has been deprived of his liberty and lawfully detained for the duration of the head sentences imposed by the Supreme Court after conviction of serious offences in a fair hearing. In those circumstances, in my view, the bill does not limit the rights in section 21 of the charter.

Section 12 – Freedom of movement

The right to freedom of movement is reasonably and justifiably limited where the person is deprived of their liberty under sentence of imprisonment after conviction for a criminal offence. This bill does not add to that limitation arising from the sentence.

Section 8(3) – Equality before the law

Section 8(3) provides that every person is equal before the law and is entitled to equal and effective protection against discrimination.

Discrimination under the charter act is limited to discrimination on the basis of an attribute set out in section 6 of the Equal Opportunity Act 2010, such as age, disability or sex. The bill does not give rise to any discrimination based on a relevant attribute and hence does not limit the right in section 8(3) of the charter acts to equal protection of the law without discrimination.

It is not clear whether the statement in section 8(3) that every person is equal before the law is a separate right which is not limited by the concept of discrimination based on an attribute. If it is, then I consider that the right is limited in relation to Paul Denyer because the bill makes unique provision for him alone. I consider that the limitation on any such right is reasonable and justified because of the egregious circumstances of Paul Denyer’s 3 murders and because he continues to represent a danger to the community. That Mr Denyer still presents a danger to the community so long after such serious offending means he should not be released on parole while physically capable of doing harm and this justifies the imposition on him of special restrictive conditions for the granting of parole.

Section 10 – Cruel, inhuman and degrading punishment

In Vinter and Others v. UK (9 July 2013), the European Court of Human Rights held that a whole-of-life. prison sentence with no non-parole period was incompatible with the right to be free of ‘inhuman or degrading treatment or punishment’ (under article 3 of the European Convention on Human Rights) unless there was both a prospect of release and a possibility of review of the continued detention. The court considered that the possibility of release if a prisoner was terminally ill or physically incapacitated and other criteria were met was not sufficient to comply with article 3. The decision has been. strongly criticised by the UK government and others.

Section 10(b) of the charter provides that a person must not be treated or punished in a cruel, inhuman, or degrading way. In my opinion, section 10(b) of the charter does not apply to life sentences with no non-parole period in the way the European Court held that article 3 applied in Vinter’s case. In DPP v. Hunter [2013] VSC 440, the Supreme Court imposed a life sentence with no non-parole period after considering Vinter’s case and the charter act. That sentence was upheld by the Court of Appeal (Hunter v. The Queen [2013] VSCA 385). It follows that the application in Vinter’s case of article 3 to whole-of-life sentences with no prospect of parole has not been followed in relation to the charter act section 10(b) by the Supreme Court of Victoria. Accordingly, I consider that the bill’s imposition of restrictive conditions on the making of a parole order in relation to Paul Denyer does not limit the right in section 10(b). If a sentence of life imprisonment with no possibility of parole is not cruel and inhuman punishment in Victorian law, a sentence of life imprisonment with a limited possibility of parole under statutory conditions cannot be cruel and unusual punishment.

I therefore conclude that the bill is compatible with the rights set out in the charter acts. I note that it is possible that a court may take a different view than I have as to whether the bill is incompatible with charter act rights. In this exceptional case, the charter act will be overridden because of the need to ensure that the life sentences imposed by the Supreme Court for these egregious crimes are fully or almost fully served and to protect the community from the ongoing and real risk of serious harm presented by Paul Denyer. The bill will provide that the charter act does not apply to the special conditions in the bill for making a parole order for Paul Denyer.

Dr Matthew Bach MP

Member for North-Eastern Metropolitan

Second reading

Matthew BACH (North-Eastern Metropolitan) (09:59): I move:

That the bill be now read a second time.

The Corrections Amendment (Parole) Bill 2023 is a commitment from the Victorian Liberals and Nationals to ensure a key element in relation to community safety is upheld – to make certain the protection of the community from Paul Denyer by keeping him in jail until he can pose no threat to the community.

The bill changes the preconditions for Mr Denyer’s eligibility for parole in Victoria to have the effect of preventing him from being released on parole unless the parole board is satisfied that he is in imminent danger of death or seriously incapacitated and as a result that he lacks the capacity to cause harm to another person.

Mr Denyer committed some of the most heinous crimes in the history of Victoria. Victorians should rightly expect that the government of the day should do whatever is possible to ensure he is never released.

With this bill, the Liberals and Nationals are seeking to deliver that certainty to Victorians. In addition, this bill will provide certainty to the families of Mr Denyer’s victims, who have already been through hell and for whom ongoing uncertainty about Mr Denyer’s imprisonment is deeply and needlessly traumatic.

Paul Charles Denyer was sentenced by the Supreme Court of Victoria on 20 December 1993 to three consecutive terms of life imprisonment for three counts of murder. On appeal the next year, in July 1994, Mr Denyer was granted a non-parole period of 30 years, which expired this year.

To provide certainty and to ensure Mr Denyer is denied parole, the bill expressly sets out the conditions for granting parole to Mr Denyer in a new section 74AC. This confirms that Mr Denyer must effectively be in imminent danger of death before parole will be granted. This aspect of the bill is modelled on section 74AA of the Corrections Act, which specifies the prisoner Julian Knight as a named individual by reference to his offences and sentencing. As section 74AA was upheld by the High Court, modelling this bill on the previous legislation provides legal certainty to the provision.

This bill means Mr Denyer will never be released except in very restrictive circumstances, essentially mirroring preconditions contained in New South Wales legislation also upheld by the High Court in the decision of Crump v. New South Wales. The effect of these provisions, as I have said, is that Mr Denyer will die in jail or will be in such a condition upon release that he will be a threat to no-one.

These preconditions are that: the adult parole board must be satisfied on the basis of a report prepared by the Secretary of the Department of Justice and Community Safety that he is in imminent danger of dying, or is seriously incapacitated, and as a result that he has the physical ability to harm no other person; and the adult parole board must be further satisfied that, because of those circumstances, the making of the order is justified.

By essentially mirroring the preconditions contained in sections 74AA and 74AB of the act, we can ensure the constitutional validity of this bill.

The bill also includes a provision making it clear that the Charter of Human Rights and Responsibilities Act 2006 does not apply to the new section 74AC, and that this override provision does not need to be re-enacted every five years. Although the Liberals and Nationals consider that the bill is compatible with the charter act, it is possible that this bill may be challenged on those grounds and that a court may take a different view. In the exceptional case that a court took this view, this bill overrides the charter and excludes its application to these clauses to ensure that the life sentences imposed by the Supreme Court are served and the community is protected. This provision is intended to serve as the override declaration envisaged by section 31(1) of the charter act but goes further to make clear that the charter act does not apply to section 74AC in its entirety and that the override and non-application of the charter act do not expire after five years under section 31(7) of the charter act.

With this bill, the Victorian community can be certain that it is protected from the possibility that Paul Denyer will one day be free to commit another atrocity or further atrocities. With this bill, families who have suffered unimaginably, families who have received the worst phone call you could ever receive, families who have endured and who continue to endure unspeakable grief, will at least know that the man who murdered their loved ones will remain in jail, where he belongs.

I commend this bill to the house.

Lee TARLAMIS (South-Eastern Metropolitan) (10:04): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.