CORRECTIONAL SERVICES (APPLICATION OF TRUTH IN SENTENCING) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. CARMEL ZOLLO (Minister for Emergency Services, Minister for Correctional Services, Minister for Road Safety, Minister Assisting the Minister for Multicultural Affairs) (15:42): I move:

That this bill be now read a second time.

On 19 November 1991, Shane Andrews was convicted of the murder of Mr Brian Lyden. Andrews was found by a jury to have shot Mr Lyden, who had formed a relationship with Andrews' estranged wife, with a rifle outside the Aberfoyle Park Primary School. Cox J sentenced Andrews to life imprisonment with a non-parole period of 23 years. When the Statutes Amendment (Truth in Sentencing) Act 1994 was proclaimed, that non-parole period was recalculated in accordance with the act to 14 years, 11 months and 20 days.

On 13 February 2006, that non-parole period expired. Andrews has applied for parole three times and has been refused each time. Andrews has taken legal action against the state of South Australia. He argues that he is entitled to parole under the act as it stood at the time at which he was sentenced.

When Andrews was first sentenced in 1991, the Correctional Services Act 1982 provided for automatic release on parole at the expiry of a prisoner's non-parole period. The Parole Board had a discretion to impose conditions on release and, for prisoners serving a life sentence, was required to make a recommendation to the Governor about how long the parole period should extend for (a period between three and 10 years). Assuming that the conditions of parole were agreed by the prisoner, neither the Parole Board nor the Governor had a discretion to refuse release on parole.

This regime occasioned controversy. In the early 1990s, there was a concerted effort to amend the law to provide for truth in sentencing across Australia. In 1994, as part of the truth in sentencing reforms, the Correctional Services Act was amended by the Statutes Amendment (Truth in Sentencing) Act 1994. One major change brought in by that amending act was abolition of automatic parole for sentences above five years. So, at the expiry of a non-parole period, a prisoner became entitled to apply to the Parole Board for release. In the case of prisoners serving life sentences, the board could only recommend release to the Governor.

Andrews has sued the state of South Australia. He argues that section 16 of the Acts Interpretation Act 1915, which effectively enacts the common law presumption against retrospective operation, applies to the truth in sentencing act so that, in accordance with the law as it stood in 1991, the Parole Board now has no discretionary power to refuse his release. Section 16(1)(d) of the Acts Interpretation Act provides:

unless the contrary intention appears,...[an] amendment...does not affect any...penalty...or punishment...imposed, prior to the...amendment.

The Andrews case was heard by the Full Court of the Supreme Court (Duggan, Anderson and David JJ) on 15 July 2008. The decision has been reserved.

In relation to the law, in 1991 section 66(1) of the Correctional Services Act 1982 said that the Parole Board was obliged to order the release of any prisoner whose non-parole period had expired before 30 days had elapsed after that expiry so long as the prisoner had agreed to the conditions (if any) proposed to him or her for parole. Any detention after that 30 day period was unlawful and could base an action for false imprisonment.

On 1 August 1994, the Statutes Amendment (Truth in Sentencing) Act 1994 came into force. It amended the Correctional Services Act 1982. Section 11 of the amending act repealed sections 66 and 67 of the act and replaced them with new sections. The effect of the amendments was that the system of automatic parole was left for sentences of less than five years, calculated according to the amending act, but that for prisoners serving life sentences or any other sentence of more than five years that expectation was abolished. The act now provided (by section 67(5)) that a prisoner serving a sentence of life imprisonment would apply for parole not more than six months before the non-parole period expired (if there were one), that the board had a discretion whether to recommend parole and, if it did recommend parole for a lifer, release was subject to the overriding discretion of the Governor.

The central purpose of the amending act was to abolish the system of automatic remissions. So that individual prisoners already in prison were not harmed, the act had a transitional provision as follows:

A sentence of imprisonment...imposed before the commencement of this act and a non-parole period imposed before the commencement of this act are, on the commencement of this act, reduced by the number of days of remission credited to the prisoner [section 20A].

This provision made it clear that parliament intended that, but for the reduction of non-parole periods by remission credits, prisoners seeking parole after the commencement of the amendments were to be dealt with in accordance with the new scheme provided for by the act. Indeed, as already noted, Mr Andrews' non-parole period was recalculated and reduced in accordance with the act that he now claims did not apply to him.

The intentions of the government and the parliament are equally apparent from Hansard. The second reading explanation of minister Matthews said:

All prisoners will no longer be automatically released by the Parole Board at the end of their non-parole periods...Prisoners serving a sentence of 5 years or more will have to apply to the Parole Board for release at the expiration of their non-parole period. And the government believes that it would be undesirable for there to be two groups of prisoners, pre-amendment prisoners who continue to be eligible for remissions and post-amendment prisoners not being eligible for remissions...The retention of the two systems would be particularly confusing if a prisoner was serving a sentence under both the old system and the new system...A dual system would have to be maintained until the prisoner with the longest remaining non-parole period is discharged on parole.

The question of the rights of pre-amendment prisoners was examined by Lander J in Summers v Frances Nelson QC and others (23 December 1994). Summers made the same argument that Andrews is now making. It was rejected. One of the most telling reasons was that, at the time the amending act was passed, the prisoner had accrued no right to release at all—merely an expectation that there would be a right once the non-parole period had expired (which it had not). That decision was not appealed and nor has it been challenged before now. The government has relied in good faith on that decision ever since.

In relation to policy, the government is of the opinion that Andrews' argument is wrong in law, wrong in policy and wrong as a matter of principle. Substantial reasons for that position are set out above. This bill is not an admission that the government's legal position is wrong or even weak: the current assessment is that the government's legal position is strong. The bill is being introduced as insurance in case the worst happens.

Furthermore, the government is in a strong moral position. It has relied in good faith upon a decision of the Supreme Court that has gone unchallenged for 14 years. It is entitled to do so. The consequences of losing the argument will be dramatic. There are currently 20 prisoners who were sentenced before 1994 whose non-parole periods have expired. If Andrews' argument is correct, these prisoners would also be entitled to automatic release. Given that all these prisoners are serving sentences of at least 14 years, their crimes are very serious. In addition, these prisoners, and many others who were not granted immediate parole after the commencement of the amending act in 1994, may be entitled to compensation for unlawful imprisonment.

Further consideration is being given to a rough quantum of potential change. On a very preliminary basis, it appears that this may run into many millions of dollars. These consequences are not tolerable for the public or for the government. It should be noted that, if Andrews gets his judgment before the bill comes into operation, that judgment will stand, but the effect of the bill is to forestall any pending judgment order.

The bill will also prevent any further applications or claims when it comes into operation. The bill will come into force upon assent. I commend the bill to the council and seek leave to have the explanation of clauses inserted in Hansard without my reading it. I urge all members today to debate this bill because, clearly, it is a very important piece of legislation.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Correctional Services Act 1982

3—Insertion of Schedule 1

This clause inserts new Schedule 1.

Schedule 1—Application of Truth in Sentencing Act amendments

Clause 1 sets out definitions for the purposes of the measure.

Clause 2(1) provides that the amendments to the Correctional Services Act 1982 provided for by the Statutes Amendment (Truth in Sentencing) Act 1994 apply, and have always applied, in respect of all prisoners serving sentences of imprisonment immediately before the commencement of those amendments regardless of when the prisoners were sentenced.

Clause 2(2) provides that it follows that anything done or omitted to have been done in relation to such prisoners before the commencement of this clause on the basis referred to in subclause (1) has been, and has always been, validly done or omitted to have been done.

Clause 2(3) provides that this clause affects rights and liabilities arising between parties to proceedings initiated before the commencement of this clause to the extent to which those rights and liabilities arise from, or are affected by, an act or omission referred to in subclause (2); but does not affect any such rights or liabilities arising between parties to proceedings heard and finally determined before the commencement of this clause.

Clause 2(4) provides that nothing in this clause affects the operation of a subsequent amending Act which will have effect according to its terms.

Debate adjourned on motion of Hon. S.G. Wade.