Correctional Services (Parole) Amendment Bill

Introduction and First Reading

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

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:58): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

At the last State Election, the Government made an election commitment to make changes to the law to ensure 'no body; no parole'. The commitment promised that changes would be progressed to ensure that prisoners sentenced to life imprisonment for the offence of Murder, assist and cooperate with investigative authorities to locate the remains of their victim(s).

The Correctional Services (Parole) Amendment Bill 2015 (the Bill) provides for amendments to be made to the Correctional Services Act 1982 (the Act) to implement some important changes to the process for release on parole of life sentenced prisoners as well as the election commitment.

The 'no body; no parole' changes compel the Parole Board to give consideration to the degree to which life sentenced prisoners who have applied for release on parole have cooperated with authorities in the investigations of the offence. The new provisions will also apply to prisoners convicted and sentenced to life imprisonment for the offences of Conspiracy to Murder and Aiding, Abetting, Counselling or Procuring the Commission of Murder.

The way it does this is by inserting provisions into the Act that require the Parole Board to obtain and consider a report from the Commissioner of Police providing an evaluation of the significance and usefulness of the prisoner's cooperation in investigations. The Bill provides that the Board must not release the prisoner on parole unless the Board is satisfied that the prisoner has satisfactorily cooperated in the investigation of the offence.

When the Government announced this commitment it very rightly received overwhelming support from victim advocacy groups and the public alike who have unfailingly expressed utter outrage and disgust at the very thought that a murderer could deliberately withhold this information further traumatising grieving families and loved ones.

The changes are designed to bring closure to victims' families and provide a strong incentive for criminals to cooperate with authorities.

It is really very simple—no cooperation means no parole.

The Bill also seeks other amendments to the Act in relation to parole for life sentenced prisoners.

Under the current provisions a life sentenced prisoner becomes eligible to apply for parole once they have served their non-parole period in custody (providing they have a period fixed).

The application process for life sentenced prisoners to be released on parole in South Australia is a two staged process. Firstly the Parole Board of South Australia will consider the application and either recommend or decline release.

Applications require a significant amount of consideration particularly in relation to assessing risk to the community. The Parole Board must be satisfied that the prisoner has taken adequate steps to address their offending behaviour before a recommendation for release to parole will be made. If the Parole Board recommends release, the recommendation is forwarded to the Governor in Executive Council for consideration.

The Governor in Executive Council has the final decision as to whether a life sentenced prisoner is to be released to parole.

This State is one of only two States in Australia that still has the Governor as the decision maker.

Whilst it might be easily accepted that release to parole for these prisoners warrants a different process to other parole releases, and simple to argue that the decision making process must have a review instrument of sorts, the involvement of the Government and Governor in making such an administrative decision has received a great deal of scrutiny, including from the Parliament from time to time.

The Bill seeks to remove the Governor's role but inserts new provisions to provide an independent review process of these decisions, never previously put to Parliament to consider.

Further, it inserts some extra provisions for release on parole and in so doing, it maintains and strengthens the commitment to community safety and to victims of crime.

The proposal to remove the Governor's role and insert a new review role in the parole process has received support from stakeholders consulted to date.

Stakeholders who have offered their support for the proposal include the Law Society, the Presiding Member of the Parole Board and the Commissioner for Victims' Rights.

The Bill maintains the role of the Parole Board as the first stage of determining release on parole for life sentenced prisoners; the Board will undertake determinations much as it does now, albeit with the additional consideration of whether or not a prisoner has cooperated with authorities in locating the remains of their victim(s) in relevant circumstances.

In accordance with current provisions in the Act, the paramount consideration of the Board when determining an application for the release of a prisoner on parole must be the safety of the community.

Under the new proposal, the Parole Board will either refuse the application for release on parole, or make a decision to release on parole.

In keeping with that appropriate focus of community safety, in the event the Board makes a decision to release a life sentenced prisoner on parole, the Bill provides a right to seek a review of the decision by:

The Attorney-General;

The Commissioner of Police; and

The Commissioner for Victims' Rights.

If none of the parties lodge submissions within the review period, the prisoner is released on parole subject to the conditions determined by the Parole Board.

Should an application for review be lodged by any or all of the responsible individuals seeking additional conditions or amendments to the release conditions, the Bill provides for this consultation to be undertaken through conference with the applicant(s) and the Parole Board in order to reach a settlement. The prisoner is represented in these proceedings by the Parole Board.

If the application is for a review of the Parole Board's decision, notification will be made to the prisoner, the Board, the applicant(s) and each of the other persons able to make application for review, and a full review will be undertaken.

The Bill establishes the Parole Administrative Review Commissioner (PARC) to undertake this review process and provides for the powers and procedures of the Commissioner in carrying out a review.

The establishment of the PARC for this function will maintain and even strengthen confidence in the parole decision process for these prisoners as the Bill limits eligibility for appointment to former Court Judges only: Exceptionally respected, learned individuals who it could be easily argued are the very best placed citizens to be appointed to undertake such a review.

At the conclusion of the review, the Commissioner may affirm or vary the decision of the Parole Board. The Commissioner may also set aside the decision of the Parole Board, and either substitute their own decision, or send the matter back to the Parole Board with directions or recommendations.

The establishment of the Commissioner and the right of review process will provide the appropriate oversight of decisions made by the Parole Board for the release of life sentenced prisoners.

Other changes to strengthen the parole provisions for life sentenced prisoners includes amending the current discretionary power of the Parole Board to impose electronic monitoring on life sentenced prisoners released on parole. In order to mirror amendments progressed for child sex offenders that were passed by the Parliament unopposed in late 2013, this Bill will see the Parole Board compelled to consider imposing electronic monitoring as a condition of parole for these prisoners (which could include GPS monitoring).

Electronic monitoring is a valuable monitoring tool currently used by the Department for Correctional Services for the rigorous monitoring and supervision of certain offenders in the community. Recently the Department commenced using more sophisticated GPS technology for this purpose.

Electronic monitoring specifically enhances the ability to monitor an offender's compliance with the special conditions to which they are subject. It can significantly assist offenders to comply with the conditions of their Order and further support them to live offence-free lifestyles whilst at the same time, balancing the needs of the public in regards to contributing to community safety through providing a high level of monitoring and supervision.

An electronic monitoring condition can be imposed for the whole period of parole, or part thereof.

In relation to the parole period for life sentenced prisoners, the Act currently provides terms to be set at not less than three years and not more than ten years.

The Bill seeks to change that provision to life on parole for life sentenced prisoners.

The Commissioner for Victims' Rights agrees with this amendment.

Varying parole periods exist in legislation for parole of life sentenced prisoners across the rest of Australia, ranging from six months through to the remainder of the parolee's natural life.

Amending the SA Act to provide life on parole as mandatory for life sentenced prisoners in this State will be consistent with some other States and Territories including the Northern Territory, Queensland and Tasmania. All of which have provisions for parole to be for the remainder of the offender's life. Similarly in ACT, a life sentenced prisoner may be released on a licence which is in place for the remainder of the offender's life.

It will provide comfort to victims, families and the community that 'life' will continue to mean 'life' in some capacity; the offender will not only be in custody for a long period of time but if they achieve release to parole, they will be subject to supervision and monitoring for the rest of their life.

Finally, the Bill contains transitional provisions indicating that the amendments do not apply to life sentenced prisoners who have already had a decision made about their release on parole by the Parole Board or the Governor in Executive Council.

An amendment is also included to the Freedom of Information Act 1991 to include the Parole Administrative Review Commissioner as an exempt agency, consistent with current provisions for the Parole Board.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Correctional Services Act 1982

4—Amendment of section 33—Prisoners' mail

This amendment is consequential.

5—Amendment of section 64—Reports by Board

This amendment is consequential.

6—Amendment of section 67—Release on parole by application to Board

Currently, the Board makes a recommendation to the Governor relating to the release on parole of a prisoner serving a life sentence. The amendments authorise the Board to grant parole to such prisoners and provide for the release to be on a day that falls after the period for seeking a review of the decision by the Parole Administrative Review Commissioner.

Provisions are also inserted into the section providing that the Board cannot release on parole a prisoner serving a sentence of life imprisonment for an offence of murder unless the Board is satisfied that the prisoner has satisfactorily cooperated in the investigation of the offence (and the Commissioner of Police may provide a report on the cooperation).

7—Amendment of section 68—Conditions of release on parole

Technical and consequential amendments are made. The insertion of new subsection (1aaa) requires the Board to consider imposing a condition on the release on parole of a prisoner serving a sentence of life imprisonment that the prisoner be monitored by use of an electronic device.

8—Amendment of section 69—Duration of parole

This amendment provides that a prisoner serving a sentence of life imprisonment who is released on parole after the commencement of this subsection will, unless the release is cancelled or suspended, or the sentence is extinguished, remain on parole for the remainder of the sentence

9—Repeal of section 70

Section 70 is repealed as a consequence of the amendment to section 69.

10—Amendment of section 71—Variation or revocation of parole conditions

The Attorney-General, the Commissioner of Police and the Commissioner for Victim's Rights are given a right to apply to the Board for a variation or revocation of conditions relating to parole for a person serving a sentence of life imprisonment. They are also given a right to put submissions on any variations or revocations to conditions proposed to be effected pursuant to an application of the person or on the Board's own motion. The other amendments to section 71 are consequential.

11—Insertion of Part 6 Division 4

New Division 4 of Part 6 is inserted:

Division 4—Review of release on parole of life prisoners

Subdivision 1—Preliminary

77A—Interpretation

Definitions for the purposes of the Division are inserted. A key definition is that of reviewable decision.

Subdivision 2—Parole Administrative Review Commissioner

77B—Appointment of Commissioner

Provision is made for the appointment of the Parole Administrative Review Commissioner.

77C—Acting Commissioner

An Acting Commissioner may be appointed.

77D—Staff

The Commissioner may make use of the staff of an administrative unit of the Public Service.

Subdivision 3—Reviews by Commissioner

77E—Right of review of Board decision to release life prisoners on parole etc

The Attorney-General, the Commissioner of Police and the Commissioner for Victim's Rights may apply for a review by the Commissioner of a reviewable decision. The nature of the review and the powers of the Commissioner on a review are set out.

77F—Effect of review proceedings on Board's decision

A decision of the Board to release a prisoner serving a life sentence on parole is stayed pending any review proceedings.

A prescribed reviewable decision (such as a decision to impose a particular condition on the parole of a life prisoner) is not automatically stayed, but the Commissioner may stay the operation of the decision if it is just and reasonable to do so.

77G—Proceedings to be heard in private

Proceedings for the review of a reviewable decision before the Commissioner must be heard in private.

77H—Board to assist Commissioner

The Board must use its best endeavours to assist the Commissioner in a review of its decision.

77I—Parties

The applicant and the Board are the parties to a review, and the other persons who have a right to apply for a review may also appear and be heard on a review.

77J—Compulsory conferences for prescribed reviewable decisions

The Commissioner must, as soon as is reasonably practicable after the commencement of proceedings for the review of a prescribed reviewable decision (such as a decision to impose a particular condition on the parole of a life prisoner), require the parties to the proceedings to attend a compulsory conference before the presiding member or deputy presiding member of the Board for the purpose of attempting to resolve the matters in dispute

77K—Powers and procedures of Commissioner

The Commissioner's powers and procedures on a review are set out.

77L—Commissioner to proceed expeditiously

Reviews are to be conducted as expeditiously as possible.

Subdivision 4—Other matters

77M—Immunity from liability

The Commissioner is given an immunity from liability.

77N—Privilege and public interest immunity not affected

The rules and principles relating to legal professional privilege and public interest immunity are not affected by a review.

77O—Confidentiality of information

Confidentiality of information relating to a review is protected.

77P—Proof of decision of Commissioner

An evidentiary provision is included relating to proving a decision of the Commissioner.

Schedule 1—Related amendment and transitional provision

Part 1—Related amendment to Freedom of Information Act 1991

1—Amendment to Schedule 2—Exempt agencies

Parole Administrative Review Commissioner is included as an exempt agency for the purposes of the Freedom of Information Act 1991.

Part 2—Transitional provision

2—Transitional provision

A transitional provision is set out for the purposes of the measure.

Debate adjourned on motion of Hon. T.J. Stephens.

The PRESIDENT: A quorum not being present, ring the bells.

A quorum having been formed: