Thursday, 16 November 2023

Bills

Corrections Amendment (Parole Reform) Bill 2023

Introduction and first reading

The PRESIDENT (17:26): I have a message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Corrections Act 1986 in relation to parole and for other purposes.’

Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (17:26): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Lizzie BLANDTHORN: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (17:27): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Corrections Amendment (Parole Reform) Bill 2023.

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

Overview

The Bill inserts new provisions in the Corrections Act 1986 (Act) dealing with the powers of the Adult Parole Board and the Secretary to the Department of Justice and Community Safety (DJCS).

Specifically, the Bill will:

• limit the circumstances in which the Adult Parole Board may order the release of Paul Denyer on parole – namely, the prisoner Paul Denyer who was sentenced by the Supreme Court on 20 December 1993 to three concurrent sentences of life imprisonment for three counts of murder; and

• require the Adult Parole Board to impose a no-return period after refusing parole to a person serving a life sentence, and the person cannot receive parole within that period except if they are dying or incapacitated, and

• empower the Adult Parole Board to make a ‘restricted prisoner declaration’ preventing a person serving a life sentence for a particularly serious crime from receiving parole while the declaration is in force except if they are dying or incapacitated, and

• allow the Secretary to DJCS to share information about a no-return period and restricted prisoner declaration with registered victims and, if it is in the public interest, the Adult Parole Board to share this information with other members of the public.

Human Rights Issues

Paul Denyer was sentenced in 1993 to three life sentences for the murders of three women committed with what the sentencing judge referred to as ‘unbelievable savagery’.

Clause 7 of the Bill introduces a new section 74AC into the Act which provides that the Adult Parole Board can only make an order for the release of Paul Denyer on parole if satisfied, on the basis of a report prepared by the Secretary to DJCS, that:

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

(c) the Adult Parole Board is further satisfied that, because of matters (a) and (b) above, the making of the order is justified.

Clause 8 of the Bill introduces new section 74AAD to the Act. Section 74AAD requires the Adult Parole Board to impose a no-return period of up to 5 years if it refused to grant parole to a prisoner serving a sentence of life imprisonment. The prisoner cannot receive parole during the no-return period unless the Adult Parole Board is satisfied that the prisoner:

(a) is in imminent danger of dying, or is seriously incapacitated, and as a result, no longer poses a risk to the community, and

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

(c) the Adult Parole Board is further satisfied that, because of matters (a) and (b) above, the making of the order is justified.

Clause 9 of the Bill introduces new sections 74AAE, 74AAF, and 74AAG to the Act which create a restricted prisoner declaration scheme. The scheme will apply to ‘restricted prisoners’ which the Bill defines as prisoners serving life sentences for multiple murders, murder of a child, or murder and a sexual offence. New section 74AAE requires restricted prisoners to apply for a parole order before they can receive parole. New section 74AAF requires the Secretary to DJCS to prepare a report for the Adult Parole Board when a restricted prisoner applies for parole or approaches the end of their non-parole period or the end of the period specified in an existing restricted prisoner declaration. New section 74AAG empowers the Adult Parole Board to, after considering the Secretary’s report, declare that a ‘restricted prisoner’ cannot receive parole for a period of 5–‍10 years if it is in the public interest to do so. A person cannot receive parole while a restricted prisoner declaration is in force unless the Adult Parole Board is satisfied that the person:

(a) is in imminent danger of dying, or is seriously incapacitated, and as a result, no longer poses a risk to the community, and

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

(c) the Adult Parole Board is further satisfied that, because of matters (a) and (b) above, the making of the order is justified.

If a declaration is made, the Adult Parole Board must, on receiving a report from the Secretary to DJCS, consider renewing the declaration before it expires.

These clauses collectively are relevant to, and in some cases limit, the following human rights in the Charter:

• the right to equality before the law (section 8)

• the protections against cruel, inhuman and degrading treatment (section 10(b)) and the right to humane treatment when deprived of liberty (section 22)

• the right to freedom of movement (section 12) and liberty (section 21)

• the right to a fair hearing (section 24)

• the right not to be punished more than once (section 26)

• the protection against retrospective criminal laws (section 27)

Clause 5 of the Bill amends section 30A of the Act to allow the Secretary to DJCS to inform victims who have been included on the Victims Register managed by DJCS of a no-return period or restricted prisoner declaration. Clause 5 also empowers the Secretary to DJCS to inform registered victims that the Adult Parole Board is considering making a restricted prisoner declaration to facilitate victims providing a submission to the Board if they wish to do so. Clause 10 of the Bill introduces a new section 104ZZAA to the Act, which allows the Adult Parole Board to inform other members of the public of a no-return period or restricted prisoner declaration if it is in the public interest.

These clauses are relevant to the right to privacy (section 13).

Human rights engaged but not limited by the Bill

Right to privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The right to privacy is relevant to clauses 5 and 10 of the Bill, which empower the Secretary to DJCS to inform registered victims, and the Adult Parole Board to inform the public, of certain information about a no-return period or restricted prisoner declaration.

In my view, clauses 5 and 10 do not limit the right to privacy, for the following reasons.

The nature and extent of the information permitted to be disclosed is precisely confined and concerns a prisoner’s carceral status, the length of any no-return period and any restricted prisoner declaration applicable to them (and by extension, when they may next be considered for release into the community on parole). While this is personal information, it is information that a prisoner would arguably not retain a reasonable expectation of privacy in regards to, given that it largely concerns administrative decisions concerning a prisoner’s release, in the context where their head sentence and non-parole period would generally be publicly available information.

However, to the extent that disclosure would interfere with privacy, this would not occur arbitrarily. The extent of any interference is confined, as, in addition to the type of information that can be disclosed being limited to specific matters as set out in the Bill, the persons to whom it may be disclosed are limited to registered victims and persons to whom the Adult Parole Board considers it is in the public interest to disclose it to.

The amendments serve the legitimate and important purpose of reducing the stress and trauma of the parole process for victims and provide reassurance to the public where appropriate. Empowering the Secretary to DJCS to inform victims that the Adult Parole Board is considering making a restricted prisoner declaration is necessary to allow the victim to make submissions to the Adult Parole Board. If a restricted prisoner declaration is made or no-return period imposed, it is also critical that this information can be shared with victims and, if it is in the public interest, members of the public, to reduce the stress and trauma they may experience when there is uncertainty about when a prisoner could next be considered for parole.

There are also several safeguards in place to ensure personal information is not shared arbitrarily.

With respect to the information that the Secretary to DJCS can share with registered victims under clause 5, section 30A(2) gives the Secretary discretion around whether to share information. This means that the Secretary can refrain from disclosing the information where appropriate, such as if it may put the security or safety of a prisoner at risk. Sections 30H and 30I of the Act also apply to information shared with victims under section 30A of the Act. Section 30H ensures that persons to whom information is disclosed must treat that information in an appropriate manner that respects the confidential nature of the information. Section 30I provides that it is an offence to publish the information, cause it to be published, or solicit or obtain the information for the purpose of publication. The Secretary will also be obliged under the Charter to give proper consideration to the right to privacy when exercising this discretion.

As discussed above, new section 104ZZAA requires the Adult Parole Board to be satisfied that disclosing the information is in the public interest before it can do so, which protects against any arbitrary interferences.

Accordingly, I am of the view that the human rights in section 13 are not limited by these reforms, which ultimately permit disclosure of a very limited set of information, in limited circumstances that are justified and established by law.

Right to liberty and freedom of movement

Section 21(1) of the Charter provides that every person has the right to liberty. Section 21(2) provides that a person must not be subjected to arbitrary detention. Section 21(3) provides that a person must not be deprived of their liberty except on the grounds and in accordance with procedures established by law. Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely, enter and leave it, and has the freedom to choose where to live.

Where a prisoner becomes subject to a restricted prisoner declaration or a no-return period, they will be no longer be eligible for release on parole during the specified period except in strictly limited circumstances. This may appear to constitute a deprivation of liberty and limitation on freedom of movement. The severe curtailment of Paul Denyer’s ability to be granted parole may also appear to constitute a deprivation of liberty and restriction on his freedom of movement, as he will only be eligible for release on parole in strictly limited circumstances.

However, the constraints on granting parole if a declaration or no-return period is imposed under clause, 8 and 9 do not themselves deprive any persons of their liberty or right to move freely. Nor does the constraint on granting Paul Denyer parole in clause 7. That deprivation occurred when the sentencing court imposed the sentence of imprisonment.

The right to liberty and 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 by an independent court after a fair hearing. The Bill does not affect the head sentence of imprisonment imposed by the sentencing court nor does it increase the limitation caused by the court’s sentence. The Bill only alters the conditions on which the Adult Parole Board can order that Paul Denyer, or other prisoners subject to a no return period or restricted prisoner declaration, be released on parole during their sentence. This does not change the fact that these prisoners have been deprived of liberty and lawfully detained for the duration of the head sentence. As such, the constraints on the granting of parole imposed by the Bill cannot properly be construed as effecting any new or increased deprivation of a prisoner’s liberty.

I further note that the setting of a non-parole period does not create a right or an entitlement to release on parole, nor to the continuation of a particular legislative scheme for release on parole for the duration of a person’s sentence. The High Court held in Crump v New South Wales (2012) 247 CLR 1, and has consistently re-affirmed in subsequent decisions, that the power of the executive government to order a prisoner’s release on parole may be broadened or constrained or even abolished entirely by the legislature of the State, to reflect changeable policies and practices.

Accordingly, I am of the view that the human rights in sections 21 and 12 are not limited by these reforms.

Right to a fair hearing (section 24)

Section 24 relevantly provides that every person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

It could be argued that the practical effect of allowing the Adult Parole Board to impose a no-return period or make a restricted prisoner declaration is equivalent to replacing a court-determined non-parole period with a new non-parole period determined by the Board. Likewise, the significant limits imposed by new section ‍74AC on Paul Denyer’s ability to apply for parole could be argued to be replacing the judicial sentencing decision to impose a non-parole period.

However, I am of the view that the right to a fair hearing is not limited by these reforms. The Chief Justice of the High Court in Crump v NSW found that there is a clear distinction between the judicial function exercised by a judge in fixing a minimum term of imprisonment, and the administrative function exercised by a parole authority in determining whether a person is eligible for release on parole. In fixing a minimum term before a person in prison can be considered for release on parole, the sentencing judge determines that all the circumstances of the offence require that the offender serve no less than that term, without the opportunity for parole. The purpose of parole generally is to provide for mitigation of the punishment of the person in prison in favour of rehabilitation and reduced risk to the community through conditional freedom, when appropriate, once the person has served the minimum time.

Once an offender is sentenced, the administration of that sentence passes to the executive government. The executive decision to release or not to release a prisoner on parole reflects policies and practices which change from time to time. Although the fixing of a non-parole period permits the executive government to reduce the period of time which the prisoner would spend in prison, it leaves the head sentence unaffected. A person released on parole is still under sentence, until the expiry of the sentence.

Accordingly, following the High Court’s reasoning in Crump v NSW, I am of the view that the right to a fair hearing is not limited, as the court’s determination of the criminal charge and subsequent sentence remains unaffected by these parole reforms.

Further, in my view, the Adult Parole Board’s decision to impose a no-return period or restricted prisoner declaration in respect of a person in prison does not engage the right, because such a person is neither charged with a criminal offence, nor involved in a civil proceeding within the meaning of section 24(1) of the Charter. A person applying for parole does not have any entitlement to be heard in respect of their application, and neither the Charter nor the rules of natural justice apply to decisions of the Adult Parole Board.

Protection against retrospective criminal laws (section 27)

Section 27(2) provides that a penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.

It could be argued that the restrictions on parole for Paul Denyer and other prisoners retrospectively alter the original punishment given to the affected individuals for their offending. Therefore, the right under section ‍27(2) may appear to be engaged.

However, in my view, the right in section 27(2) is not limited by these reforms. Allowing the Adult Parole Board to impose a declaration or no-return period which significantly limits the conditions under which a person in prison can receive parole is not properly characterised as punishment. Nor is restricting the conditions under which Paul Denyer can receive parole.

Parole is administered by the Adult Parole Board under the Act. As already stated, although a sentencing court fixes the non-parole period, the fixing of such a sentence exhausts the relevant court’s judicial function, and the punitive component of the sentence. Parole then becomes a matter of executive discretion, within the confines of a legislative scheme, and is focused rather on rehabilitation considerations. As previously mentioned, the High Court has held that it is open to the legislature to alter the circumstances in which particular persons may be released on parole, even during the currency of their prison term. The reforms therefore do not impose a penalty and the right in section 27(2) is not limited.

Charter rights limited by the Bill

Right to fair hearing (s 24)

I observe that the Adult Parole Board is not bound by the rules of natural justice and is declared to not be a ‘public authority’ for the purposes of the Charter. In other words, Parliament has already declared that decisions of the Board do not engage the right to a fair hearing. To the extent that this Bill, which will extend this existing abrogation of fair hearing to decisions where a no-return period exists or make a restricted prisoner declaration, the right to fair hearing is engaged.

To the extent that section 24(1) could be engaged and is limited by this Bill through the extension of the existing exclusion of natural justice to apply to these new decisions by the Adult Parole Board, any limits that may result are in my view reasonably justified. The exclusion of natural justice serves the important aim of facilitating the Adult Parole Board to respond quickly and effectively when performing its functions, which relate to the management of prisoners serving a sentence, many of whom may have dynamic and complex needs and pose associated risks. This includes facilitating the expeditious management of the Board’s caseload to ensure that decisions concerning parole are considered without delay and at the earliest opportunity. This also includes flexibility to make prompt decisions in response to a sudden change in circumstances or elevated level of risk, without being required to provide an opportunity to be heard or consider submissions.

Finally, it is also important that the Adult Parole Board is able to discharge its functions without being impaired or frustrated by challenges to its procedures. I note that the Adult Parole Board remains subject to judicial review (other than on the grounds of denial of natural justice), and a prisoner will still retain the right to seek review of the Adult Parole Board’s compliance with the applicable statutory criteria concerning these decisions. Accordingly, I am satisfied that any limits on fair hearing effected by this Bill are reasonably justified.

The right to equality before the law

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination.

There is some uncertainty whether this right is intended to operate as a prohibition on unequal treatment by reference to discrimination based on a protected attribute as defined in the Equal Opportunity Act 2010 or has a broader application beyond the protected attributes.

Assuming an application beyond protected attributes, affording equal protection of the law could mean properly allowing those who have committed the same offences to have equal access to the parole regime. Removing the possibility of parole for Paul Denyer treats him differently to other prisoners who have committed the same offences.

This differential treatment is afforded on the basis of the egregious nature of Paul Denyer’s offending, and not by reason of a protected attribute enjoyed by Paul Denyer.

If the broad application of the right to equality before the law – that is, the protection against discrimination of grounds beyond the protected attributes – is adapted, then I consider that the right is limited in relation to Paul Denyer because the Bill makes unique provision for him alone.

However, I consider that any limitation of the right to equality before the law is reasonable and justified because of the egregious circumstances of Paul Denyer’s offending and his continued and persistent risk of harm to the community. That Paul Denyer still presents an unacceptable risk to the community 30 years after such serious offending means he should not be released on parole while physically capable of doing harm. It also provides greater certainty for the families of Paul Denyer’s victims that any unsuitable application for parole by Paul Denyer will not progress, minimising the extent of further stress and trauma these families may experience in relation to the parole process. This justifies the imposition of special restrictive conditions on him for the granting of parole, which may limit the right to equality.

Cruel, inhuman, degrading treatment (section 10(b)) and inhumane treatment (section 22(1))

Section 10(b) provides that a person must not be treated or punished in a cruel, inhuman or degrading way. Similarly, section 22(1) provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

The rights in sections 10(b) and 22(1) have been interpreted as being collectively limited in circumstances where an offender serving a life sentence is given no real prospect of release so as to induce a sense of hopelessness, which may be contrary to human dignity and amount to inhuman and degrading treatment. The plurality of the High Court in Minogue v Victoria (2018) 264 CLR 252 [53] observed that there was ‘clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is possible’. Courts have also found that the possibility of release if a person is terminally ill or physically incapacitated is not sufficient to comply with this right.

The reforms in clause 7 effectively make Paul Denyer ineligible for parole until he is either close to death or permanently incapacitated. This may be considered to constitute cruel, inhuman or degrading treatment, or inhumane treatment when deprived of liberty, as the reforms will have the effect of removing his prospect of release and diminishing his possibility of rehabilitation.

The reforms to parole in clauses 8 and 9 empower the Adult Parole Board to impose a no return period or restricted prisoner declaration preventing a person from receiving parole for a set period. In the case of a no return period, the restriction on accessing parole will only last up to a maximum of 5 years. In contrast, a restricted prisoner declaration must last between 5 to 10 years and there is no limit on the number of subsequent declarations that can be made.

Depending on the individual circumstances of the prisoner, a no return period or restricted prisoner declaration will not necessarily remove their hope of rehabilitation and release. However, if a prisoner is aged or infirm when a declaration or no-return period is imposed, it could have the practical effect of rendering the prisoner effectively ineligible for parole until they are either close to death or permanently incapacitated. The risk of this occurring is considerably higher with the restricted prisoner declaration, given the declaration can be in place for up to 10 years and can be renewed an indefinite number of times. The requirement for the Adult Parole Board to automatically consider making a new declaration before an existing declaration expires is likely to further exacerbate any sense of hopelessness experienced by the prisoner subject to the declaration.

For these reasons, there are circumstances in which the no-return or restricted prisoner declaration reforms could also have the effect of removing the prisoner’s prospect of release and diminishing their possibility of rehabilitation, which may constitute cruel, inhuman or degrading treatment, or inhumane treatment when deprived of liberty.

While the Victorian statute book already provides for the possibility of life in prison with no prospect of parole, I accept that the restrictive constraints on the granting of parole imposed by a long-restricted prisoner declaration or no-return period may induce a sense of hopelessness in an offender so as to limit the rights in sections 10(b) and 22(1) of the Charter. While these rights are more likely to be limited under the restricted prisoner declaration reforms, there are circumstances in which the rights could also be limited through the no-return reforms.

It has also been stated in the jurisprudence of the European Court of Human Rights and the English Court of Appeal that continued detention beyond what can be justified on legitimate penological grounds also infringes on the right to be treated with dignity and to be free from cruel, inhuman or degrading treatment or punishment.

While the Adult Parole Board will likely consider a prisoner’s rehabilitation prospects when determining the length of a no-return period or restricted prisoner declaration, there is a chance that a prisoner could be rehabilitated and not pose a risk to community safety before the expiry of any period set by the Adult Parole Board. If this occurs, the no-return period or restricted prisoner declaration would prevent the person from receiving parole, even though there is no longer justification to keep them in prison on community safety or rehabilitation grounds. Given the prisoner will have served the non-parole period set by a court, they have arguably also satisfied punishment and deterrence purposes of imprisonment. As a result, the Bill could have the practical effect of causing a prisoner to remain in prison beyond what is penologically necessary, contrary to their rights to be free from cruel, inhuman or degrading treatment, and inhumane treatment when deprived of liberty.

Again, the rights in sections 10(b) and 22(1) will not necessarily be limited in all or most instances where the Adult Parole Board imposes a restricted prisoner declaration or no-return period, but there are circumstances where a limitation could occur. The rights are more likely to be limited under the restricted prisoner declaration reforms given the longer length of the declaration, but the risk of limitation also arises with respect to the no-return reforms.

For these reasons, I consider that clauses 7, 8 and 9 of the Bill limit the rights in sections 10(b) and 22(1) of the Charter.

Limitation to sections 10(b) and 22(1) by clauses 7, 8 and 9

The objective of limiting Paul Denyer’s access to parole in clause 7 of the Bill is to avoid the risk posed to community by the release from prison of Paul Denyer and to provide greater certainty to the families of his victims and reduce the stress and trauma they experience in relation to the parole process.

The objective of the Bill is to allow the Adult Parole Board to provide more certainty to both victims and prisoners about when the Adult Parole Board can be expected to reconsider the prisoner’s suitability for parole following a denial. After a prisoner is refused parole, there is a clear expectation that the prisoner should address the reasons for the parole denial before making a further application for parole. For example, a prisoner may need to identify suitable housing, which could take a few weeks or months, or successfully complete a rehabilitation program, which could take months, or demonstrate good behaviour in the latter half of their sentence, which could take months or years. The amendments in clause 8 formalise the Adult Parole Board’s power to set a no-return period and expressly prevent a prisoner from receiving parole during that period, reducing the stress and uncertainty experienced by victims and providing prisoners with more clarity.

The objective of the Bill is also to reduce stress and trauma experienced by families and friends of victims of serious crimes and further enhance community safety and protection by allowing parole eligibility of particularly serious offenders to be restricted where this is in the public interest.

There are significant benefits to be gained by reducing the stress and trauma experienced by family and friends of victims of serious crimes, including the family and friends of Paul Denyer’s victims. Providing the victims’ families and friends with confidence that a prisoner will not be considered for release into the community unless there is effectively no risk associated with that decision promotes their right to security of person. This is particularly appropriate in circumstances where the prisoner has no realistic prospect of being granted parole.

Notwithstanding that these are pressing and substantial objectives, I accept that the nature of the limitations on the rights in sections 10(b) and 22(1) are severe for Paul Denyer and other prisoners whose parole prospects are affected by these amendments. The Bill will prevent Paul Denyer from being released on parole except in very limited circumstances, and those circumstances are not conducive to leading any meaningful life post-release. In certain cases, a no-return period or restricted prisoner declaration could have the same effect for other prisoners. I also accept that the limitation is intensified by the retrospective effect of the provisions, because offenders, including Paul Denyer, would have had an expectation that they may have had some possibility for release in the future and the capacity to live a meaningful life post-release, which will be removed.

The Bill includes a number of features which lessen the limitation on the rights in sections 10(b) and 22(1) by the no-return period or restricted prisoner declaration scheme.

• Both the no-return period and restricted prisoner declaration provisions will only apply to a very narrow cohort of offenders, where a court imposed head sentences of life imprisonment. The reforms are therefore appropriately targeted at prisoners who have committed the most serious offences, where victims are at the highest risk of retraumatisation through the parole process, and where a court contemplated the possibility of the offender spending the rest of their life in prison.

• The Adult Parole Board will have discretion as to whether it will impose a declaration, the length of the declaration, and the length of a no-return period. This means that if the Adult Parole Board considers it appropriate, it can take into account a prisoner’s age and infirmity when determining the length of a declaration or no-return period to minimise the risk of effectively removing the prisoner’s hope of release. The Adult Parole Board can also take into account a prisoner’s community safety risk and rehabilitation prospects to avoid a situation where a rehabilitated prisoner is unable to access parole. This will significantly minimise the risk of a decision limiting the rights in section 10(b) and 22(1).

• The Bill also sets limits on the length of a no-return period and restricted prisoner declaration. As noted above, the 5-year limit on a no-return period significantly reduces the risk that a prisoner will remain in prison without any hope of release or beyond what is penologically necessary. The 10-year limit on the length of a restricted prisoner declaration also goes some way to reducing the risk of limiting section 10(b) and 22(1). While the Adult Parole Board can make subsequent restricted prisoner declarations, the Adult Parole Board will be required to re-consider whether a declaration would still be in the public interest, before a new one can be imposed, which could give the individual some hope that rehabilitation efforts could lead to release.

While the above framework will mitigate the extent of limitations on rights, I accept that it does not completely mitigate the risk of arbitrary limits imposed by the reform on the rights in section 10(b) and 22(1). I also accept that there may be alternative less restrictive means reasonably available to achieve the purpose of the reforms, for example by providing more extensive exceptions allowing a prisoner to receive parole during a no-return period or during the period that the restricted prisoner declaration is operational, if they are successfully rehabilitated. However, these alternative means would be inconsistent with the Government’s policy intent. Further, I note that since clauses 7, 8 and 9 only apply to people in prison who are serving a life-sentence for which a non-parole period has been set, the post-sentence detention and supervision schemes provided for the Serious Offenders Act 2018 (which apply to offenders who have completed their custodial sentence, including a period served on parole) are not available as a less restrictive means for achieving the desired objectives.

For these reasons, I conclude that the limitation on the rights in sections 10(b) and 22(1) of the Charter are unable to be justified in accordance with section 7(2) of the Charter. Accordingly, I conclude that clauses 7, 8 and 9 are incompatible with human rights.

For this reason, clauses 7, 8 and 9 contain override declarations expressly providing that the Charter does not apply to each provision. Each provision also contains a sub-section providing that the override provisions do not need to be re-enacted every five years. Consequently, the Charter will have no application to these new sections in perpetuity. In this exceptional case, the Charter is being overridden and its application excluded to ensure that victims of serious crimes are provided with more certainty and not subjected to unnecessary stress and trauma through the parole process and to protect the community from the ongoing risk of serious harm presented by Paul Denyer and other particularly serious offenders whose parole eligibility will be affected by this reform. I also propose to make a statement explaining the exceptional circumstances of the sort of offending to which the provisions apply, and which justifies the inclusion of those override declarations.

Hon Enver Erdogan MP

Minister for Corrections

Minister for Youth Justice

Minister for Victim Support

Second reading

Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (17:27): I move:

That the bill be now read a second time.

Ordered that second-reading speech, except for the statement under section 31 of the Charter of Human Rights and Responsibilities Act 2006, be incorporated into Hansard:

Before I speak to the Bill, I want to acknowledge the victims of the heinous crimes that led to the development of this Bill. I want to say their names – Natalie Russell, Elizabeth Stevens and Debbie Fream. I also want to acknowledge the deep and ongoing grief experienced by their families, their friends and their community. I admire their resolve to contribute to making positive change so that other families in a similar, heartbreaking position receive the benefits of these reforms. These victims and their families have guided our work on the Bill, and I extend my heartfelt thanks to the family members represented in the gallery today – this Bill is testament to your courage, your conviction, and your advocacy.

The main purpose of the Bill is to prevent Paul Denyer from being released from prison on parole until he is incapable of posing a threat to anyone, and to provide more certainty to other victims of serious crimes in the parole process.

Paul Denyer was sentenced by the Supreme Court of Victoria on 20 December 1993 to three concurrent terms of life imprisonment for three counts of murder. Mr Denyer became eligible to be considered for parole this year but was refused parole in May 2023.

Parole is intended to promote community safety by providing people in prison with structured, supported and supervised transition back into the community. However, parole is a privilege that must be earned, it is not a right. The safety and protection of the community will always be the most important factor for the Adult Parole Board to consider when making a decision whether to release a prisoner on parole.

In the case of Paul Denyer, this principle was followed, and he was denied parole. In terms of the ultimate outcome, the system worked as it should have. However, the experience of the victims’ families through the parole process revealed opportunities for us to do better when it comes to supporting victims and their families to avoid unnecessary trauma.

The Bill will be one important measure to protect the safety of the community, provide more certainty to the families of Mr Denyer’s victims, and improve the experience of victims of serious crimes through the parole process.

Preventing Mr Denyer from receiving parole

The Bill introduces a new section 74AC into the Corrections Act, which will prevent Mr Denyer from being released on parole unless he is in imminent danger of death or seriously incapacitated and as a result, lacks the capacity to harm anyone. This mirrors the restrictions on parole for Julian Knight and Craig Minogue contained in sections 74AA and 74AB of the Act.

Mr Denyer’s crimes were particularly heinous, and the Bill will ensure the community is protected and that both the community and the families of Mr Denyer’s victims can have confidence that he will never be released until he can do no harm.

The Government accepts that this provision may be incompatible with Mr Denyer’s Charter rights. The new section 74AC therefore includes subsections providing that the Charter of Human Rights and Responsibilities Act 2006 does not apply to this provision, and that those override declarations do not need to be re-enacted every five years (as is ordinarily required under section 31(7) of the Charter). Consequently, the Charter will have no application to this provision. In this exceptional case, the Charter is being overridden to ensure the community is protected from Mr Denyer and the significant risk he poses to community safety. This is consistent with the existing provisions that apply to Mr Knight and Mr Minogue, which include Charter overrides.

The Bill will also introduce other reforms to minimise unnecessary trauma experienced by other victims of serious crimes during the parole process.

No Return Period

Currently, if the Adult Parole Board refuses to grant a person parole, there is no legislative restriction on when the person can apply for parole again. While the Adult Parole Board will often direct people in prison not to apply for parole again for a specific timeframe, this is not currently a requirement, and the timeframe is not communicated to victims. This can be extremely distressing for victims and their families, who hold the uncertainty of not knowing when the person could apply for parole again and be released into the community.

The Bill will introduce a new section 74AAD, which requires the Adult Parole Board to impose a ‘no return’ period of up to five years if it refuses to grant parole to a person serving a life sentence. During the ‘no return period’, the person will be unable to receive parole unless they are dying or incapacitated and lack the capacity to harm another person.

The no return power is a tool for the Board to select an appropriate timeframe within which it does not consider a prisoner should be able to reapply for parole. This will be informed by the evidence the Board considers as part of the parole hearing. The maximum period for a no-return period is five years, and the period can be tailored according to a person’s rehabilitation prospects and other factors. For example, a person in prison who demonstrates more positive rehabilitation prospects may receive a shorter no return period, whereas a person who has not engaged in recommended rehabilitation programs or presents a higher risk may receive a longer no-return period to enable those programs to be completed before they can reapply for parole. Importantly, community safety will continue to be the paramount consideration in making parole decisions and when setting a no return period.

After a person in prison applies for parole, victims and their families may be left in the dark, uncertain about whether the person could be released – this is incredibly distressing. The legislation will bridge this information gap by allowing the Victims Register within the Department of Justice and Community Safety to inform registered victims about a no return period set by the Board. If the person is denied parole, victims can have a level of certainty on when they be next reconsidered for parole. This level of certainty is intended to make the process less stressful and less retraumatising for victims.

Restricted prisoner declaration scheme

The Bill also introduces a restricted prisoner declaration scheme through new sections 74AAE, 74AAF and 74AAG. The scheme gives the Board the power to make a restricted prisoner declaration for certain serious offenders, which will prevent them from being able to receive parole for a specified period if it is in the public interest. A similar reform was introduced in Queensland in 2021 and has seen several declarations made to date.

The declaration scheme will apply to a smaller cohort of people serving life sentences who have committed the most serious crimes. This cohort, known as ‘restricted prisoners,’ will include people serving a life sentence in prison for having committed multiple murders, a single murder where the victim was a child, or a single murder where a serious sexual offence was also committed against the same victim.

The Bill requires the Board to consider making a restricted prisoner declaration when a restricted prisoner applies for parole, or when the person reaches 12 months from the end of their non-parole period (the point at which they are eligible to be considered for parole). This recognises that, for victims, merely knowing that there is a possibility that a person could apply for parole and be released into the community is extremely distressing. It will ensure that the Board will be required to consider whether to make a restricted prisoner declaration before the person can even be considered for parole.

If the Board decides to make a declaration, the length of the declaration must be at least five years up to a maximum of 10 years. Shortly before a declaration expires, the Board will be required to consider making a new declaration. This will give victims some certainty about whether the person in prison can apply for parole at the end the declaration period. It will also give the person in prison more clarity about their ability to receive parole. There will be no limit on the number of declarations that can be made for an individual prisoner.

The decision about whether to make a declaration will sit with the Adult Parole Board. Importantly, this ensures that these significant decisions will be made by the independent Board – the body that is entrusted to make decisions about parole. The Board will need to be satisfied that it is in the public interest to make a declaration. This is a broad concept that will grant the Board flexibility to assess a variety of factors, such as the person in prison’s level of community safety risk and the prisoner’s rehabilitation efforts. The Bill also expressly empowers the Board to consider the potential impact on victims if the prisoner were released on parole.

Like the no return power, a narrow exception will apply that will allow a person who meets the definition of restricted prisoner to receive parole if they are dying or seriously incapacitated and no longer able to pose a threat to community safety.

Importantly, the Bill will empower the Secretary, Department of Justice and Community Safety to inform registered victims about the making of a restricted prisoner declaration.

Nothing can take away the pain experienced by families who have lost loved ones. This provision empowers the Board to, where it is in the public interest, give those families a level of peace knowing that the person who inflicted that suffering upon them won’t be in a position to apply for parole, and won’t be leaving prison for a considerable period.

In the Bill, new sections 74AAD and 74AAG also include subsections providing that the Charter of Human Rights and Responsibilities Act 2006 does not apply to either provision and that those override declarations do not need to be re-enacted every five years (as is ordinarily required under section 31(7) of the Charter). Consequently, the Charter will have no application to these provisions. The Government accepts that in some limited scenarios, these provisions may have consequences that are incompatible with the Charter. In this exceptional case, the Charter is being overridden to prevent victims of the most abhorrent crime from being retraumatised as part of the parole process, and to minimise the additional stress inflicted upon them by the person who caused their ongoing suffering. Overriding the Charter for these provisions is consistent with the approach previously taken to override the Charter for existing provisions in the Act that limit parole in relation to Mr Knight, Mr Minogue and people who have murdered police officers.

Disclosure of no-return periods or restricted prisoner declarations

The Bill will also empower the Adult Parole Board to disclose details of a no-return period or restricted prisoner declaration to the public, including the media, if it is in the public interest to do so. This will ensure that where appropriate, the Board can keep the public informed and to dispel any misinformation that might arise. It will also help to prevent the harassment of victims and their families that can occur in high profile parole matters.

The reforms in the Bill will go some way towards reducing the trauma that victims of serious crimes and their families can experience during the parole process. It can give victims, their families and friends and the community more security and more peace, knowing that, where appropriate, prisoners who have committed the most horrific crimes will not be considered for parole for a set amount of time.

I commend the Bill to the house.

Section 31 of the Charter of Human Rights and Responsibilities Act 2006

Lizzie BLANDTHORN: I rise to make a statement under section 31 of the Charter of Human Rights and Responsibilities Act 2006 explaining the exceptional circumstances that justify the inclusion of the override declaration in clauses 7, 8 and 9 of the Corrections Amendment (Parole Reform) Bill 2023.

New section 74AC: the bill introduces a new section 74AC into the Corrections Act which will prevent Mr Denyer from being released on parole unless he is in imminent danger of death or seriously incapacitated and as a result lacks the capacity to harm anyone. This mirrors the restrictions on parole for Julian Knight and Craig Minogue contained in sections 74AA and 74AB of the act.

Mr Denyer’s crimes were particularly heinous, and the bill will ensure that the community is protected and that both the community and the families of Mr Denyer’s victims can have confidence that he will never be released until he can do no harm. The government accepts that this provision may be incompatible with Mr Denyer’s charter rights. The new section 74AC therefore includes subsections providing that the Charter of Human Rights and Responsibilities Act 2006 does not apply to this provision and that those override declarations do not need to be re-enacted every five years, as is ordinarily required under section 31(7) of the charter. Consequently the charter will have no application to this provision. In this exceptional case the charter is being overridden to ensure the community is protected from Mr Denyer and the significant risk he poses to community safety. This is consistent with the existing provisions that apply to Mr Knight and Mr Minogue, which include charter overrides.

New sections 74AAD and 74AAG: in the bill, new sections 74AAD and 74AAG also include subsections providing that the Charter of Human Rights and Responsibilities Act 2006 does not apply to either provision and that those override declarations do not need to be re-enacted every five years, as is ordinarily required under section 31(7) of the charter. Consequently the charter will have no application to these provisions. The government accepts that in some limited scenarios these provisions may have consequences that are incompatible with the charter.

In this exceptional case, the charter is being overridden to prevent victims of the most abhorrent crime from being retraumatised as part of the parole process and to minimise the additional stress inflicted upon them by the person who caused their ongoing suffering. Overriding the charter for these provisions is consistent with the approach previously taken to override the charter for existing provisions in the act that limit parole in relation to Mr Knight, Mr Minogue and people who have murdered police officers.

Evan MULHOLLAND (Northern Metropolitan) (17:30): I move:

That debate be adjourned for one week.

Motion agreed to and debate adjourned for one week.