Abstract
Parole plays a significant part in the Australian criminal justice system. In March 2017, there were over 14,000 people on parole across Australia and, with prison numbers now well over 40,000, this and the number of those eligible for parole are likely to increase.
Since its inception, parole has been criticised as being too soft on crime or as undermining the ‘true’ sentence handed down by the judge. A number of recent, high-profile and catastrophic failures of the system around the country have led to calls for reform of parole systems or even their complete abolition.
Parole is a far from perfect system, as recent inquiries by Walter Sofronoff QC in Queensland, and retired High Court Justice Ian Callinan in Victoria, among many others, have shown. While the majority of recommendations favour more and tighter restrictions on parole, they also recognise the rehabilitative and re-integrative aspects of parole that can contribute to community safety.
What is of concern is that the most recent changes to Australian parole laws, policies and practices have seen legislatures, purportedly reflecting ‘public opinion’, becoming less willing to trust either the courts or parole authorities by gradually, and consistently, eroding their authority, powers and discretion. Victims’ interests have not only been recognised but, in some circumstances, elevated to the extent that they conflict significantly and adversely with those of offenders.
While legislatures, legitimately, have the final democratic authority to decide where sentencing and release power lies, their willingness to circumscribe, remove, override or overrule the discretion vested in courts and parole authorities can result in policies that are unjust, expensive and possibly counter-productive.
Five themes are evident in the recent spate of reforms around Australia. First is prioritisation of community safety over all other relevant considerations in parole decision-making. This is especially obvious in relation to specific offender groups presumed to be most dangerous to public safety, such as sexual and/or violent offenders. Second, increasingly limits are being imposed on the discretion of the courts to set non-parole periods through the use of mandatory or presumptive non-parole periods. Courts are becoming less trusted by legislatures to choose an ‘appropriate’ punishment for the crime.
The third theme is the questioning or undermining of parole boards’ discretion to make decisions involving perpetrators of serious violent or sexual offences and, more recently, other serious offences. In such cases, parole board decisions may be reviewed by additional panels or are required to be made by differently constituted panels. Laws restricting the rights of named individuals or readily identifiable groups of offenders also severely restrict parole authorities’ discretion. The fourth theme is the elevation of victims’ rights, which is most evident in the rapid adoption of ‘no body, no parole’ laws. Finally, there appears to be a shift in the rationale for parole to move from a prisoner-centred and re-integrative process to one increasingly focused on a prisoner’s progressive forfeiture of rights due to their offending behaviour. Convicted criminals are regarded as having intentionally repudiated their contract with society.
It is accepted that parole boards, courts and even governments can make mistakes. However, Australian governments have too often succumbed to perceived community pressure to restrict both parole, and the independence and powers of parole authorities. Parole, like sentencing, should remain in the hands of impartial and independent bodies free of political influence. Legislatures should keep in mind that, ultimately, an effectively functioning parole system provides the community with a valuable mechanism for promoting the safety of the community.