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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Correctional Services (Parole) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 June 2015.)

Mr GARDNER (Morialta) (17:02): It is appropriate that somebody from the opposition should stand and put the opposition's point of view on this matter, and it would appear this afternoon that the most appropriate person is me as the shadow minister for corrections.

Members interjecting:

Mr GARDNER: I am indeed here and I am the lead speaker for the opposition. Perhaps in the 800thanniversary week of the signing of Magna Carta it is appropriate that there be a piece of legislation debated that does seek to curtail some level of executive power over the people in our community. The principle that we all stand equal before the law irrespective of political or power-related considerations has an opportunity to get some air time. This bill makes some contribution towards the idea that we are equal before the law and that legal matters should be a question of fair enactment of justice and not a political question. With that in mind, the bill is significant and has a number of measures, and the opposition will be supporting it.

The bill does a number of things in relation to reform of the parole process concerning those people who have been sentenced to life imprisonment, in relation to the process for parole for prisoners who have been sentenced to life sentences for the offence of murder. I will take you through them, and the consultation and the principles behind the opposition's position. I thank the minister and his staff for the opportunities to be fully briefed on this matter through its development.

The first thing that the bill does is enact what has been in shorthand described as 'no body, no parole'. As I think the minister described in his second reading explanation, perhaps it might be more correctly described as 'no cooperation means no parole'. The threshold question is whether the police commissioner is satisfied that a murderer who has committed a murder might be withholding information deliberately, as the minister described in the second reading, further traumatising grieving families and loved ones. The commissioner must be satisfied that the person has undertaken cooperation with the police to assist in finding a body before the matter is taken to the Parole Board. In terms of how it plays out, in new subsection (6) of the bill it states:

…the Board must not order a prisoner serving a sentence of life imprisonment for an offence of murder be released on parole unless the Board is satisfied that the prisoner has satisfactorily cooperated in the investigation of the offence (whether the cooperation occurred before or after the prisoner was sentenced to imprisonment).

For the purposes of that subsection (6) it states:

, the board must take into account any report tendered to the Board from the Commissioner of Police evaluating the prisoner's cooperation in the investigation of the offence, including—

(a) the nature and extent of the prisoner's cooperation; and

(b) the timeliness of the cooperation; and

(c) the truthfulness, completeness and reliability of any information or evidence provided by the prisoner; and

(d) the significance and usefulness of the prisoner's cooperation.

That is really the aspect of the bill that deals with this 'no body, no parole' or, again, as the minister described it, 'no cooperation, no parole' factor. I think that it meets the government's election commitments certainly but the process as described is that, again, the commissioner's report goes to the Parole Board in those cases where a body has not been found and we hope that it will enable—in those cases where a body has not been found—the families of the victims to have closure in that regard.

The second aspect of the bill has been described as 'life means life' and requires that for a prisoner serving a life sentence, should they be released on parole, their supervision by the Parole Board will continue for the rest of their life. Currently such a parolee ceases to be considered to be under the supervision of the Parole Board after a period of time, between three and 10 years—I think 10 years is usual. This matter is dealt with in clause 8 and it very simply identifies 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.

The opposition also has the view that that is an appropriate measure to take. For somebody who has been sentenced to life imprisonment, I think the community's expectation is that they will serve a sentence of life whether they remain in gaol for the entirety of that sentence or, indeed, are let out on parole. The Parole Board can continue that supervision and if there are orders which the Parole Board imposes then, of course, it is the suitable body to judge whether those orders are relevant every time that person goes up for review by the Parole Board, but that that parole should not expire after 10 years is appropriate.

The third aspect concerns a requirement that the Parole Board contemplate electronic monitoring as part of the order. That is in clause 7, new subsection (4). Currently the Parole Board may often contemplate electronic monitoring as part of the release conditions under parole supervision for a parolee. This subsection requires that they consider that matter, and we have no objection to that being included to ensure that new technologies are at the forefront of the Parole Board's mind. However, I do note that members of our Parole Board would have that at the forefront of their minds anyway, I am sure.

At clause 10 is the fourth part of the bill and that concerns the three people—who we will talk about a bit further—the Attorney-General, the Commissioner of Police and the Commissioner for Victims' Rights—who will have significantly enhanced roles in the application of this law. Those three people will have the right under this legislation to seek variation or revocation of parole conditions by application to the Parole Board at any time after the person has been released on parole. Those measures are described in clause 10, and that is suitable. Finally, I suspect the most significant aspect of the bill is the application of the end of the executive veto on a matter that has been considered by the Parole Board, recommended for release and then the executive has the opportunity to veto that.

The new model that is proposed is described particularly in subdivision 2, which relates to the parole administrative review commissioner, and, in fact, a fairly significant body of work has gone into developing this model, so I will set out the processes to be enacted.

As per the second reading, the minister described the review process. If there is a review to be done on the recommendation of the Attorney-General, or the victims of crime commissioner, or the police commissioner the review process will be undertaken under this new parole administrative review commissioner model. As the minister said in his second reading:

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.

Such is the way that it was described by the minister and I repeat it because I think that that is clarity itself. The processes proposed would involve, firstly, the Parole Board considering an application once it had passed the police commissioner's eyes for that 'no body, no parole' test, and making a determination. If the determination is to refuse the prisoner's application, the prisoner, as now, can reapply in 12 months' time but, in the meantime, they go back to prison.

I encourage any member who is unfamiliar with the workings of the Parole Board to go and have a talk to them. I was very privileged, along with the shadow attorney last year, to be able to observe some of the way that it works. That process is clearly laid out and I will not take up the time of the house by going through it. Anyone can read the bill if they wish to. However, I do encourage them to get briefings on this matter because the work that it goes through is important.

The Parole Board chair, Frances Nelson, I do not think could fairly be described by anyone as a soft touch in any way, but the expertise she brings to the role is significant and we thank her for her service to the community. The people who serve with her on that Parole Board represent a range of backgrounds. It must be a judge or a retired judge of certain courts, or a legal practitioner or a person who has extensive knowledge of or experience in criminology or penology, a medical practitioner who has extensive knowledge and experience in psychiatry, a person who has extensive knowledge of or experience in criminology, sociology or other related sciences, a person who has extensive knowledge of or experience in matters related to the impact of crime on victims and the needs of victims in the criminal justice system, a former police officer, a person of Aboriginal decent and men and women totalling nine members.

So, the work the Parole Board does is significant and the processes that it has, and importantly involving victims of crime in that process through the opportunity for victim statements to form part of the considerations, are important. The Parole Board undertakes its processes. If a determination is to approve release under parole supervision then, under the method prescribed in the bill, the determination is then stayed at that point for 90 days. Within the first 60 days of that 90-day period an application for a review by the commissioner may be lodged by, first, the Attorney-General on behalf of the government, second, the police commissioner on behalf of SAPOL, or the victims of crime commissioner on behalf of victims.

If no application for review by a commissioner is lodged by any of those three people then there is no review. The prisoner is released per the determination of the Parole Board once the remainder of that 90-day period has elapsed and remains under the supervision of the Parole Board for the rest of their sentence, unless, of course, that sentence is overturned in some way.

The Attorney-General, the police commissioner or the victims of crime commissioner if they wish to apply for review can either apply for altered conditions, which can either be agreed to by the Parole Board and the prisoner released accordingly under supervision, or if the Parole Board disagrees then they are referred to the parole administrative review commissioner.

Secondly, the Attorney-General, the police commissioner, or the victims of crime commissioner can oppose release, which again is also referred to the parole administrative review commissioner. The parole administrative review commissioner then reviews the matter. The commissioner can affirm the Parole Board decision, and the prisoner is released accordingly; it can amend the conditions in the Parole Board's decision, and the prisoner is released accordingly; or they can set aside the Parole Board's decision, in which case the prisoner remains in custody and is eligible to reapply in 12 months' time.

Once the commissioner is appointed, they will sit as the commissioner only when a matter is brought forward. There will be no new bureaucracy. The position will be supported as needed from within the Corrections department's existing resources. It is unclear how often the commissioner may be sitting in any given year, and of course from year to year that might change, depending on the nature of prisoners who are reaching the end of their nonparole period, those considerations by the Parole Board and how often review is sought by the Attorney-General, the victims of crime commissioner or the police commissioner.

I think it is important at this point to talk about the contributions of members of the community and stakeholders who have strong views on the matter. Perhaps unsurprisingly the legal fraternity in particular has had many advocates who are expressing support for this aspect of the bill, but not necessarily all aspects. The opposition supports the earlier aspects of the bill that I described. I should note that some of those legal practitioners have expressed concerns about 'no body, no parole'.

In relation to the end of executive veto and the establishment of the parole administrative review commissioner, I note the Law Society's Rocco Perrotta has publicly said, in relation to an offender who might potentially be applying for parole under these conditions:

If they're dangerous and they're still dangerous and there's a safety risk to the public then I'm confident, in fact I could say I'm sure that the Parole Board wouldn't recommend that they be released.

I think that is probably a fair summary of how a number of those legal representatives have been putting their views that are being heard by the opposition. I want to focus for a little bit more time on the contributions made by victims and their representatives to the consultation process. I have a quote from the Commissioner of Victims' Rights, Michael O'Connell, who supports the bill. He has been described as supporting the 'depoliticisation' of the parole process, and in relation to the bill—and I am quoting Mr O'Connell—he said:

Life should mean life was a recommendation I made because victims' families often say the murderer has sentenced their loved one to death...

I think that that 'life means life' aspect is well understood and supported. The minister in his second reading identified:

The Governor and Executive Council has the final decision as to whether a life sentence prisoner is to be released to parole. This state is one of only two states in Australia that still has the Governor as a decision-maker.

It would perhaps be expected that the people who are the most personally and traumatically affected by these sorts of matters are the families of the victims themselves.

I am very glad that I had the opportunity to speak to Mrs Lynette Nitschke from the Homicide Victims Support Group, who speaks on behalf of a range of people from her organisation who have suffered unimaginable pain from the crimes that have been committed upon members of their family. I can report from my conversations with Lynette Nitschke that she supports this bill. I think it is appropriate to put on the record the importance of what she says—and I think she is right—that every effort must be made under this new process for the victims of crime commissioner to have every opportunity to get in touch with victims of the person seeking release so that their contributions may be considered under the process.

Now that is certainly the intent of the existing legislation as it stands and I believe it is the intent of this legislation, and certainly it is work that the victims of crime commissioner does, and every effort is made. Sometimes it is not possible and sometimes there are cases, as I understand, where victims of crime have elected that they would rather not be advised and that does happen from time to time.

Given that the commissioner is doing this work now, it should not be assumed that any future commissioner should be, so I think that it is important that it is understood and mentioned in the second reading debate that our expectation is that the victims of crime commissioner will continue to undertake that work and be given support to do so, so that their views may be represented through this process.

The other point that Lynette Nitschke made, which I undertook that I would place on the record for the government's consideration—and it is not a suggestion for a change to the legislation but potentially its application—is that, when the parole administrative review commissioner is to be appointed, the Homicide Victims' Support Group is eager that consideration of the experiences of the potential judge prior to their appointment as a judge, whether that be as a defence lawyer or prosecutor, be noted.

It is the view of Mrs Nitschke's group that, if possible, preference should be given to somebody who has prosecutorial experience. I offer that on her behalf to the debate but, as I say, I do not think it is a matter that is suitable for consideration in the legislation itself; it is a matter that this government or any future government can take under advisement.

The hour in the day is becoming late so in conclusion I would like to thank members of the community and representatives of the different groups who have expressed their views on this matter including the legal fraternity, the judges, the Parole Board chair (Frances Nelson), the victims of crime commissioner, the Offenders Aid and Rehabilitation Service, Second Chance, a number of constituents and, of course, Mrs Nitschke, who have taken the opportunity to speak to the opposition about this matter.

I trust that this new model will benefit the South Australian community, will serve the interests of justice and that we will benefit by having the decisions that are made about justice issues made by justice professionals rather than by politicians. I support the bill.

The Hon. M.J. ATKINSON (Croydon) (17:22): This is a matter about which any member of the public may have an opinion. It is not a matter for experts or for lawyers, despite the resemblance of the flowchart that illustrates the process to 'noodle nation'. Executive Council's authority to veto Parole Board recommendations for release of lifers in almost all cases—probably in all cases, murderers—is an extension or an application of the Executive Council's ability to commute the death penalty. That was its origin. Of course, we have seen a recent contretemps in Indonesia about the President's ability to commute a death sentence in which Australians were particularly interested.

When the Rann government came to office in 2002, I was a minister in that government and we had to grapple with this power. I should say at once that on the way back from our first community cabinet at, of course, Murray Bridge, I was in my car drafting, giving instructions on legislation of exactly this kind to take the authority away from Executive Council and take the authority away from the cabinet so that we would avoid the opprobrium amongst the public if these people who were to be released were to reoffend. The idea was to give that authority back to the Parole Board so that we could avoid the political risks.

Cabinet decided not to go ahead with my legislation; therefore, throughout my entire time as a minister, we had these debates about whether particular lifers should be released. I think it is fair to say that many of these prisoners are prisoners who, on the whole, are rehabilitated, are not a risk to the public, and are not likely to reoffend.

Ms Chapman: You should have let them out then.

The Hon. M.J. ATKINSON: Well, I will come to that because I can tell you that, time and again, Dr Jane Lomax-Smith and I were the people arguing that they be released—

Ms Chapman: Are you going to tell us what happened in cabinet?

The DEPUTY SPEAKER: Order!

The Hon. M.J. ATKINSON: —in order to—

The DEPUTY SPEAKER: Order! I am going to protect the member for Croydon.

Mr Pengilly: Argy-bargy!

The DEPUTY SPEAKER: And I am going to ask the member for Finniss to—

Ms Chapman: This is very interesting.

The DEPUTY SPEAKER: —listen.

The Hon. M.J. ATKINSON: —free up a cell for someone who was really dangerous. But, it would be fair to say that my co-conspirator and I did not often succeed. Indeed, after Mike Rann left office, my understanding is—

Ms Chapman interjecting:

The DEPUTY SPEAKER: Order!

The Hon. M.J. ATKINSON: —cabinet refused nearly every application for release. My view is that, in exercising the authority that way, cabinet was doing its best to forfeit the moral authority to make these decisions; hence, this legislation. So, I understand the immediate cause of the legislation. My own view—it is a personal view—is that it would be better if cabinet made these decisions and took political responsibility to the people of South Australia for them. But, if it were to do that, it would have to grapple more—

The Hon. S.E. Close: Courageously.

The Hon. M.J. ATKINSON: Courageously, yes; thank you—courageously with the proper considerations that ought to be applied, and that would have involved releasing more prisoners. I am worried about the trend in our political system in South Australia—particularly since the upper house was elected by proportional representation after 1975 and no government ever had a majority in the upper house after 1975—which is this tendency for us to reach political agreements and compromises, which involves emptying the role of elected representatives and, in particular, governments.

We tend to shove things away to statutory officers—to judges, to magistrates, to ombudsmen and to commissioners. You have to say we seem to be emptying out our customary role as elected representatives, and we are afraid to make big political decisions and to be responsible to them for the public. I think the public sees that, and there is a loss of respect for us, because, actually, we do not decide very much at all anymore because of decisions we made, often in deadlock conferences, so that the side that was out could deny the side that was in the ability to make big decisions. It seems to me that the side that was out (for two terms, I was with the side that was out) did this without much attention to what would happen when we were the side that was in. So there seems to be this game of denying the elected government the ability to make big decisions, and I think this is one of those decisions that we ought to be making.

In 2002, just after Mike Rann was elected premier, he was at the Oakbank races when he was approached by the Chairman of the Parole Board, Frances Nelson, who said that she had some really big and difficult decisions she was sending to him. By that she was referring to these decisions on lifers. Well, the premier took her literally. He took her at her word and, rather than just be a rubber-stamp for the Chairman of the Parole Board, he had cabinet give its earnest consideration to these decisions and make them. I have to say that as a member of cabinet I came to support his decision. I might have decided some cases differently; for instance, I would certainly have released Watson years ago, and I think probably McBride is pretty stiff—

Mr Pengilly: Steve Eger?

The Hon. M.J. ATKINSON: Yes, well, I remember that one. That was a difficult one. For instance, McBride was released before Labor came to office. He was sent back to prison for violating his parole conditions by drink-driving and then he was held in prison on the basis of the crimes he had committed and been sentenced for and then released on parole. So, essentially, as the Crown Solicitor put it to me over drinks, he is still in prison for drink-driving. So I understand what the minister is trying to achieve.

For myself, I would prefer that cabinet made these decisions and was responsible to the people of South Australia for those decisions. I would not have appointed a retired judge to review these decisions because I do not see why the vocation of retired judge has any special insight or knowledge about whether a particular prisoner is likely to reoffend. I would have thought that someone like Dr Craig Raeside or Dr Ken O'Brien would be in a better position to make those decisions, but of course they cannot, I suppose, as a matter of law, because they have already been involved in the process by which the Parole Board comes to make its decision. I thank the house for listening to me so patiently and in particular the member for Bragg so respectfully.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:32): I rise to speak on the Correctional Services (Parole) Amendment Bill 2015 and thank both the minister and the shadow minister for their contribution, not only in the parliament but also at the round tables that were offered to bring together a number of different interested parties to try to deal with a sensible resolution of the problem that we face. I think that that was mature and effective, and I think we are better for the outcome, particularly in respect of the formula that is encompassed in this bill that deals with the end of the executive veto power in respect of murder convictees.

That said, I also identify the irony that here we are with this bill that is purporting to take away the executive power of government, on which there has been full consultation by the minister, after a bill where we have in fact given the executive more power (or propose to) and taking it away from the judiciary without any consultation. So I commend the minister in this instance for making sure that there was a thorough consultation on this matter. I think that his bill, in the end, is better for it and I think South Australia will be better for it. I appreciate being invited to be part of it.

I do not think I need to deal with the 'life is life' or 'no body, no parole'. Some shortcomings have been identified with that; nevertheless, at least the latter was an election commitment, and I note the words of the shadow minister on that.

We are dealing with the extinguishing of executive veto in respect of murder convicted parties which has been used to overturn Parole Board recommendations in this state for 13 years. Whilst I appreciate that the member for Croydon has come in here to identify his little unit of resistance within cabinet (comprising himself and minister Lomax-Smith) in relation to the determination of these matters, I am stunned to hear about it given that I thought there was something about cabinet solidarity and all these things that are supposed to be confidential and given his flowery contributions to the parliament when there were challenges about decisions of cabinet to overturn the Parole Board, about how disgraceful these people were and how necessary it was to keep them locked up, as he used to make as the former attorney. I am stunned that he would make that assertion.

Nevertheless, he sat in a cabinet which for 13 years consistently refused to allow the recommendations of the Parole Board to take place. One example was where a male and female were convicted of the same murder and they let one out and kept the other one in—the same murder. The decisions of the government from 2002 to as we speak now, I think, have been reprehensible and, frankly, the member for Croydon as the attorney in that cabinet ought to take some responsibility for it.

I make this point: our gaols are overcrowded and we do have a problem. More than once we have said to the government if you want to have a policy which says that people who commit murder are to be locked up forever and we throw away the key and all those other sorts of flowery things that they would say to the public, then let us have the debate about it, let us deal with it on that basis. Don't come in here allowing a situation to prevail in our criminal law consolidation laws, and in particular that act to deal with murder, have minimum mandatory now 20-year nonparoles and those sorts of things, then accept that legislation and then go out to the public with all this nonsense about how they will never see the light of day outside of our prisons, we will throw away the key, etc. That is not acceptable.

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: Don't look at me, member for Croydon, with some sort of surprise at the mischievous claims that are being made.

The DEPUTY SPEAKER: Order! How can you interpret his look? Let's just keep ourselves—

Ms CHAPMAN: Alright. Let me say this: this process that currently exists of recommendation by Parole Board (or its equivalent, because we have had prior processes) and the veto by Executive Council has been a sensible formula that has operated in this state for decades under previous governments, and it was the government—the Rann government, in particular—that completely abused that process.

We are here today having to clean up the mess of an overburdened prison system as a result of that conduct by that government, which frankly has been perpetuated, unless this minister is prepared to come in here, have a discussion across the board and work out a way around it. We are supporting him to fix this, because we have a problem in this state, and it is as a result of the Rann government in particular, so shame on the member for Croydon for even coming in here and trying to give some pathetic excuse about him in some whimpering corner of the cabinet, failing to convince his colleagues that the responsible thing to do would be to let out some of these people on the basis of previous recommendations.

In respect of the process itself, apparently there is no appetite for the new cabinet to take on that responsibility to actually act responsibly, and that may not be the fault of the current minister for corrections. He has a problem; he has to deal with the prisons. But where is the current Attorney? Why isn't he in here giving some explanation as to why he and a new cabinet are not acting responsibly and making sure that we do have the proper declining of executive to get in and interfere with that process? That is what I think is unacceptable and I am very concerned that we are having to throw away an Executive Council role—so, I agree with the former attorney in this regard—because frankly it has been a good one up until the Rann government. If it had been exercised properly, we would not be placed in this position here today to have to introduce a new structure in order to deal with the problematic circumstance that we now face.

I will support the bill. I commend the current minister for at least brokering a sensible alternate resolution within the envelope of the fact that it is a shameful day, really, when we have a situation where a previous cabinet, and even part of the current cabinet, failed to act responsibly on behalf of South Australians and deal with this matter in the way they should have. I too have taken the view that if in the past the Executive Council has declined to accept a Parole Board recommendation, the very least they should have done on the refusals (one after another) is to confirm for the Parole Board chair (over the last 13 years) the basis upon which they have acted.

I appreciate they have had the power to do it, but what is the point of taxpayers paying the Parole Board to sit there and hear these applications, consider the submissions, make determinations, send them up to the Executive Council to present them to the Attorney-General to take them to cabinet, just to have them overturn it? What is the point of Parole Board chair Frances Nelson QC, members of her board and other staff spending hours and days to do all of this work simply to have it extinguished by the flash of a pen by the Executive Council and to have no feedback whatsoever as to whether she should even consider it next year, which she is legally obliged to do if the prisoner applies every 12 months, which they are legally entitled to do? What is the point in wasting her time, year after year after year, and the time of the Parole Board, when, frankly, it is being completely undermined by the conduct of the cabinet?

So, with those few words, there is a little scintilla of agreement I have with the former attorney, the member for Croydon, and that is that it is a sad day when we get rid of what has previously been a good model because it has been butchered by this government.

The DEPUTY SPEAKER: I am sure he will savour that scintilla. Member for Finniss.

Mr PENGILLY (Finniss) (17:41): I would like to make a small contribution on this. It is something I have had an interest in. I was interested to hear the member for Croydon's explanation of a few antics in cabinet a few years ago. I always shook my head and wondered at the politicisation that occurred under the Rann government, particularly with former premier Rann and former treasurer Foley and a few of their cohorts in completely politicising the parole situation. I guess it was brought home to me when I visited Mobilong Prison, along with Robert Lawson QC (former MLC), some years ago when I was mixed up in corrections.

Ms Redmond: As an observer.

Mr PENGILLY: As an observer, yes. We were given a bit of a talk by Steve Eger (I am sure that is his name), who is a lifer in Mobilong. He asked permission of the corrections CEO, the prison manager, and whatnot, to speak to us, which he did. He made the point that he was no threat to anybody. He had been there for a considerable period of time for murder. Indeed, he had actually achieved some form of leave where he could get out on weekends, or he could go and visit his mother, and he was looking forward to getting out of prison on permanent parole so that he could finish what was left of his life. Former premier Rann waved his arms in the air and said no-one was ever getting out, so Steve Eger is still there.

The Hon. M.J. Atkinson interjecting:

Mr PENGILLY: Words to that effect. I have absolutely no hesitation with respect to some villains who are in prison for murder, people like von Einem, the Buntings and Wagners, and particularly Michael Barry Fyfe, who has been incarcerated for so long for such a series of violent activities. Indeed, when I was out there with the Public Works Committee a couple of weeks ago we were talking to Michael Barry Fyfe, through the sealed bars, and the members for Torrens and Elder, and whatnot, were somewhat intrigued as we went into G division and he was there with his lorikeet on his shoulder almost saying that he was not guilty of what he had been thrown in gaol for, but that is another story.

I have no problem with those people never getting out; I do not believe they should get out. But I think where prisoners—and a couple have been referred to today—have served a life sentence for murder and they are rehabilitated and they are continuing to be a drain on the taxpayer, they could come out under this legislation. I would say that there seems to be something of an outbreak of common sense across the board in respect of the parliament on this, and I am supportive of what the minister and the government want to do here, as indeed is the opposition; it would make sense.

You only have to visit the prisons at the moment to see what is going on. I think there are 2,400 prisoners. We visited Mount Gambier the other day, with the new wing scheduled to come on there, with 84 beds. There were some single berths and we were all of the same opinion—that they would be double berths in no time short. I think taking these decisions, stopping politicising them, giving the job back to the Parole Board and complying with this bill, if it goes through, which it will, is a common-sense outcome.

I look forward to the bill's speedy passage here. I just want to make those few points, that I am very pleased to depoliticise it. I think it is really important to get that decision out of here. and I hope that what occurred under the former Rann government does not occur again and that we get away from that nonsense and actually use some common sense.

Ms REDMOND (Heysen) (17:46): I do want to put on the record a few comments in relation to this parole reform legislation. In my view, there is one part that I am quite prepared to support, obviously, and that is ending the Executive Council veto, as it might be called. I have long argued and long held the view that it is not appropriate for governments of any persuasion to make the final decision as to who should be in gaol and who should not. It offends the separation of powers.

I am not going to go into the Magna Carta, which I spoke about last night, but it seems to me to be entirely inappropriate for any government to have the ability to decide who will be prisoners because they are indeed then political prisoners. Prisoners should not be there by way of expediency for political purposes. I note that on 31 May in the Sunday Mail there was a statement, and I quote that statement:

South Australia is one of only two states that have retained parole sign off by the Governor, who acts on the advice of the Executive Council, which is made up of the state's cabinet ministers. Parole Board chairwoman, Frances Nelson QC, and justice advocates have long argued that this process meant decisions about parole for life sentence prisoners have been based on politics rather than the merits of the case.

I have no hesitation in supporting that particular move. I have not exactly got my head around all the detail of how the process will work in terms of the system for the Parole Board's operation, but I do believe that the Parole Board is the appropriate place for that decision to be made. Even if it were reviewed by someone in the judiciary, that would be a vast improvement on having it controlled by the executive.

The second thing I wanted to comment on is the 'life means life' aspect. Whilst in theory that sounds nice, I think it is worth taking a moment to contemplate what that might mean. I have not looked at the legislation personally, but I understand that in some states in the USA their definition of a life sentence is in fact a sentence equivalent to the lifetime already lived of the person who has been convicted. If it was an 18 year old, for instance, the life sentence would be 18 years, and if it was a 40 year old then a life sentence would be 40 years.

There are different definitions around the world as to what constitutes a life sentence, but I do think it is appropriate for the community at large to understand that a life sentence will mean that there is at least some sort of supervision. I actually agree with the thrust of what the government is trying to do there, that from now on, rather than someone who has a life sentence being released after a period of years, as I understand the system at the moment, and they may be out of prison and then for a period of years after that the Parole Board will in some way supervise them, but at some stage that will expire, under the proposal, as I understand it, if a lifer (a person who has had a life sentence imposed) is indeed released, they will be prima facie subject to the supervision of the Parole Board for the rest of their life. That is something that the community would understand.

It is actually a logical sequence to something which the previous Liberal government introduced, and that is the truth in sentencing legislation. It is important when we have sentencing that it be readily understood by the community at large. I think a 'life means life' sentencing system means that if you are sentenced, even if you do get out of gaol at some stage, you will actually be supervised for the reset of your life, and how closely that supervision will occur will be a matter for the Parole Board to decide.

The last matter I want to comment on is the provision about which I have considerable hesitation and that is the 'no body, no parole' provision. I can understand the rationale behind wanting to do that but I think that the simple statement of 'no body, no parole' is too simplistic and does not take account of a range of incidents and positions which could occur with any number of cases. For instance, if someone is legitimately innocent but they are convicted anyway—and it has been known to happen—their failure to show that they are remorseful, and their failure to identify where the body is, could well be explainable.

However, there could be any number of other cases that could arise. I believe that, whilst the idea of having a sense of cooperation with the authorities being a part of the parole system is appropriate, we should leave that discretion with the Parole Board as to what they have to say about that in the particular circumstances of each case. To me, the more a parliament tries to fetter and define the discretions that are properly exercisable by the people who are 'in the know', in inverted commas, and who have actually heard the details, met with the prisoner and heard what the people supervising the prisoner have to say and all the other circumstances surrounding a situation, I think it is appropriate for the Parole Board to have that discretion.

It may well be appropriate for them in certain cases to say, 'Well, sorry, you're not showing remorse and you haven't assisted in providing information as to where we might locate the body for the benefit of the family so that they can have some closure, so we're not going to allow you parole.' I would not object to the Parole Board coming to that conclusion, but I do think that there is a risk for our legal system if we fetter the Parole Board instead of allowing it to exercise that discretion by saying, 'This is the rule: no body, no parole,' and there the matter rests.

It just seems to me that there is a genuine risk that there could be grave injustices done, notwithstanding someone has been convicted. For those reasons, I wanted to speak and to raise my concerns about particularly that 'no body, no parole' aspect, but I do welcome the fact that this government has at last, in this tiny area, moved slightly towards being less political and relieving the state of having political prisoners.

The Hon. A. PICCOLO (Light—Minister for Disabilities, Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:54): I would like to thank honourable members for their contributions to the debate on this bill. The bill implements the government's 'no body, no parole' election commitment, designed to bring closure to victims' families by preventing release on parole for murderers who do not cooperate with authorities in relevant investigations. This will stop murderers from ever getting parole if they withhold this information which has the potential to further traumatise grieving families and loved ones.

I noted the comments made by the member for Heysen, and I think that her concerns are actually addressed in this bill because it talks about cooperation. It is not a black and white test. It is a test which, if you like, is put by the Commissioner of Police, and he or she, the commissioner of the day, will have all that information before them. They would have actually dealt with the families, they would have dealt with the offender, etc., so I am comfortable with that provision.

Also, I should mention that that is also extended to associates, and there are a number of celebrated cases where people are in our prison system at the moment but they have not provided the details or the names of those people who cooperated with them in the offence of murder, and that can also be a very stressful matter for families to know that there are people who have contributed to an offence committed on a loved one and who are actually on the outside. The bill also covers the associates. I sincerely believe that these changes will bring some relief to victims' families, and I thank the members opposite for their support of these amendments.

The bill also has some other significant reform to parole provisions. This is also in relation to the release of parole for life sentence prisoners. I acknowledge that removing the Governor from making the ultimate decision to release these prisoners to parole is a significant change, but I believe, as many have said today, that it is the right change. There has been overwhelming support from interested parties with whom I have consulted. It has been welcomed by the Presiding Member of the Parole Board, the Commissioner for Victims' Rights and the Law Society, amongst others.

I also note the comments made by the member for Morialta regarding the homicide support group. I have also had discussions with Mrs Nitschke, and I can confirm the comments made by the member for Morialta where, having had the bill explained to her, she was comfortable with what was being proposed.

One thing I would talk about just briefly is some of the media commentary on this bill, which, while it has been well intentioned, I think that people have not fully understood what is proposed. This bill deals with a very small group of people who come before the Executive Council. A number of the cases which have been cited in the media are people who do not come to Executive Council, and this bill—

Mr Gardner: No parole board would ever recommend that they be let out.

The Hon. A. PICCOLO: That is correct. So, the people who have been identified, the cases that have been identified in the media—as bad as those cases are, that is not to diminish in any way those cases—those people actually do not come before Executive Council now. So, this bill does not, if you like, reduce their consideration.

Sitting extended beyond 18.00 on motion of Hon. A. Piccolo.

The Hon. A. PICCOLO: The involvement of the Governor in making these decisions has received a great deal of scrutiny, including from the parliament in the past, and the member for Croydon also mentioned his previous attempts. This was last raised in parliament in 2011 when other changes to parole were progressed and debated.

An amendment was moved in the other place at the time to simply remove the role of the Governor and have decisions for release on parole for life sentence prisoners determined solely by the Parole Board. That amendment received very little support from both the government and opposition members at the time and that is why this bill is very different. It recognises, if you like, the concerns of the community to make sure that there are appropriate checks and balances.

At the moment, the Executive Council provides those checks and balances, and the question is: is that the appropriate body to do so? Clearly, this bill says that there is a better way of doing that. It was not surprising that even those people who are critical of the role of the Governor in Executive Council did not support that proposal at the time.

An alternative review or oversight process was not put forward for the parliament's consideration in 2011, so of course the majority of members did not support it. The government remains of that view, and that is why this bill has the appropriate oversight of a retired judge to provide the last check and balance in the process. I am pleased that members opposite support this view and support the proposed alternative review process, that the review of the decision of the Parole Board is undertaken by somebody who is exceptionally skilled in judicial processes and decision-making, that a former high-ranking judge will be appointed as the independent parole administrative review commissioner.

This, coupled with the insertion of other provisions for release on parole for these prisoners in the bill, such as compelling the Parole Board to consider electronic monitoring and also changing the period of parole from a maximum of 10 years to life on parole, maintains—and I stress 'maintains'—and strengthens the commitment to community safety and to victims of crime. With those comments, I seek the chamber's support.

Bill read a second time.

Third Reading

The Hon. A. PICCOLO (Light—Minister for Disabilities, Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (18:00): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 18:01 the house adjourned until Thursday 18 June 2015 at 10:30.


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