MS TIERNEY (Minister for Corrections) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Corrections Amendment (Parole) Bill 2018 (Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is incompatible with human rights in the Charter. I base my opinion on the reasons outlined in this statement.
The Bill substitutes, and also inserts new, provisions in the Corrections Act 1986 (Act) dealing with the powers of the Adult Parole Board (Board). Specifically, the Bill provides that the Board:
must not (except in limited circumstances) make a parole order in relation to certain persons who have been convicted of murder and sentenced to a term of imprisonment with a non-parole period, where the person murdered was a police officer and the Board is satisfied that at the time of the conduct the prisoner had a certain state of knowledge about the victim’s status as a police officer or the likely effect of the prisoner’s conduct; and
must not make a parole order in relation to the prisoner Craig Minogue except in certain limited circumstances.
Human rights issues
In 2016, the Parliament passed the Justice Legislation Amendment (Parole Reform and Other Matters) Bill 2016 (JLA Bill), which introduced s 74AAA to the Act. The purpose of that provision is to ensure that prisoners who have been convicted and sentenced to imprisonment for murdering a police officer with a non-parole period are not granted parole. This year, the High Court in its decision in Minogue v. Victoria  HCA 27 held that as a matter of construction this provision did not apply to Craig Minogue, who was sentenced in 1988 for the Russell Street bombing which killed Victoria Police Constable Angela Taylor. The Court held that s 74AAA only applies to a prisoner convicted of murder who was sentenced on the basis that they knew that, or were reckless as to whether, the victim was a police officer. The Court further held that the only materials that could be relied upon to determine whether a prisoner fell within one of those classes were the reasons of the sentencing judge and the reasons of an appellate court if, and only if, that appellate court had re-sentenced the offender.
This Bill will address the issues raised by this decision, and make it clear that the provisions are intended to apply both to Craig Minogue specifically and to persons generally who meet the relevant criteria and who the Board decides had sufficient knowledge that the person they killed was, or was likely to be, a police officer.
Clause 4 of the Bill substitutes s 74AAA. New s 74AAA(5) provides that after considering any parole application by a prisoner where the provision applies the Board must not make a parole order unless it is satisfied (based on a report from the Secretary to the Department) that the prisoner is in imminent danger of dying or is seriously incapacitated, and as a result, no longer has the physical ability to do harm to any person and has demonstrated that they do not pose a risk to the community. The Board must also be satisfied before making a parole order that the making of the order is justified.
New s 74AAA(1) only applies in respect of a prisoner who has been convicted of murder and sentenced to a term of imprisonment with a non-parole period, where the victim of the offence was a police officer (who at the time of the murder was performing any duty as a police officer or where the murder was connected to their role as a police officer), and, where the Board is satisfied that at the time of their conduct, the prisoner either intended to kill or cause really serious injury to a police officer, knew that the person killed was a police officer, or knew that it was probable that a police officer would be killed or really seriously injured. The new section further provides that in reaching this state of satisfaction, the Board must have regard to the record of the court, which is defined to include specific materials.
Clause 5 inserts new s 74AB into the Act, which provides that the Board must not make a parole order in respect of Craig Minogue unless it is satisfied, based on a report of the Secretary of the Department, of certain factors, which are the same as those discussed above in respect of new s 74AAA(5).
Both sections include an override for the purposes of s 31 of the Charter, providing that the Charter has no application in relation to those sections. The sections further expressly provide that s 31(7) of the Charter, which limits the operation of any override provision to a 5 year period, also does not apply to their operation.
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 (s 8(3));
the right to liberty (s 21);
the protections against cruel, inhuman and degrading treatment (s 10(b)) and the right to humane treatment when deprived of liberty (s 22);
the protection of children, generally (s 17(2)), and the protection of children in the criminal process (s 23);
the right to fair hearing (s 24); and
the prohibition on retrospective criminal laws (s 27).
Human rights protected by the Charter that are relevant to the Bill
The right to equality before the law (s 8(3))
Section 8(3) of the Charter provides that every person is equal before the law. 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 protected attributes.
In relation to the parole reforms in clauses 4 and 5, it could be said that removing the possibility of parole for certain offenders (both Craig Minogue and those convicted and sentenced for murder where the victim was a police officer) treats these offenders differently from other offenders having committed the same offences (but against different, non-police victims). Affording equal protection of the law means properly allowing those who have committed the same offences to have equal access to the parole regime.
In my view, the concept of equal treatment has been interpreted in Victoria as being directly tied to discrimination by reference to the protected attributes in the Equal Opportunity Act 2010. ‘Equality before the law’ refers to the enforcement and administration of laws, rather than their content or enactment, and requires that all court or administrative decisions not be applied in an arbitrary or discriminatory manner. The second limb of s 8(3) of the Charter is concerned with the content and substance of a law, and requires that a law provide equal and effective protection without discrimination. This comprises two elements: preventing discriminatory laws from being enacted, and ensuring that laws treat people in the same way except where there is reasonable justification for not doing so.
These reforms treat certain convicted offenders differently based on their conduct and the circumstances of their offending. This is an accepted form of differential treatment, which already occurs in many other aspects of the sentencing and parole system. The nature of these systems involves differentiating categories (and circumstances) of offending based on their nature and seriousness, and attaching different legal consequences and administrative procedures to different categories. As this differential treatment does not engage a protected attribute, I do not consider that the right to equality is limited by these reforms.
The right to liberty (s 21)
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 subject to arbitrary detention. Section 21(3) provides that a person must not be deprived of his or her liberty except on the grounds and in accordance with procedures established by law.
The severe curtailment of certain offenders’ ability to be granted parole may appear to constitute a deprivation of liberty, as an offender will, in most circumstances, no longer be eligible for early release (or any release if serving a life sentence).
However, the constraints on the granting of parole in clauses 4 and 5 do not themselves deprive any persons of their liberty. That deprivation will have already occurred by way of the relevant offenders’ sentences of imprisonment. The right to liberty 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 provisions of this Bill do not purport in any way to alter the original sentence of the court, in that they do not affect the head sentences of imprisonment imposed by the court or increase the limitation caused by the court’s sentence. The reforms only alter the conditions on which the Board may order release on parole during the currency of the sentence, and after the expiration of a non-parole period. This does not change the fact that the prisoner has been deprived of liberty and lawfully detained for the duration of the head sentence. As such, the constraints on the granting of parole cannot properly be construed as depriving a person of their liberty.
I note that the setting of a non-parole period does not create a right or an entitlement in a prisoner to release on parole, nor to the continuation of a particular legislative scheme for release on parole for the duration of a prisoner’s sentence. The High Court held in Crump v New South Wales (2012) 247 CLR 1 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 s 21 are not limited by these reforms, which ultimately permit deprivation of liberty on grounds, and in accordance with procedures, established by law.
Children’s rights (ss 17(2) and 23)
Section 17(2) provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child. Section 23(3) provides that a child who has been convicted of an offence must be treated in a way that is appropriate for his or her age.
In my view, the parole reforms in clause 4 will have a limited effect on child offenders. The parole reforms do not apply to the Youth Parole Board, which hears parole applications involving children under the Children, Youth and Families Act 2005.
Further, there are many protections built into the sentencing system to ensure sentences for children or young offenders take into account their age and prospect for rehabilitation, and allow for alternative sentences such as a youth justice centre order or a youth residential centre order.
I note that in relation to existing offenders currently serving a sentence, these reforms will not capture any existing offender who was sentenced as a child.
Right to a fair hearing (s 24)
Section 24 relevantly provides that every person charged with a criminal offence has the right to have the charge decided by a competent, independent and impartial court.
The reforms to parole in clauses 4 and 5 may be viewed as relevant to the right to a fair hearing in their impact on either the judicial sentencing decision, or the executive parole decision. First, it may be argued that the practical effect of these reforms is equivalent to replacing a court sentence that includes a non-parole period with an effective sentence that does not include a 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, and the administrative function exercised by a parole authority in determining whether a person eligible for release on parole, by reason of the judge’s sentencing order, should be released. In fixing a minimum term before a prisoner 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 prisoner in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner 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 may reflect policies and practices which change from time to time. Although the fixing of a non-parole period may in some circumstances permit an executive body to reduce the period of time which the applicant would spend in prison, it leaves the sentence unaffected as a judicial assessment of the gravity of the offence which the offender committed.
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. This analysis also applies to new s 74AB.
Secondly, in my view the making of a parole decision in respect of the prisoner in question does not engage the right because such a prisoner is neither charged with a criminal offence, nor involved in a civil proceeding within the meaning of s 24(1) of the Charter for the purpose of that decision. A prisoner 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 that decision.
Protection against retrospective criminal laws (s 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.
The new sections inserted by clauses 4 and 5 apply retrospectively to existing offenders and charged persons. Further, new s 127A provides that those provisions apply regardless of whether prior to the commencement of the amendments to ss 74AAA and 74AB a prisoner to whom s 74AAA applies or Craig Minogue, had already become eligible for parole, taken any steps to ask the Board to grant them parole, or the Board had begun any consideration of whether the prisoner should be granted parole.
Therefore, the right under s 27(2) may appear to be engaged. However, in my view, the right in s 27(2) is not limited by these reforms, as the denial of parole in accordance with the new conditions is not properly characterised as punishment. Parole is administered by the 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, such as the Corrections Act 1986, 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.
I note that issues of unfairness may appear to arise in relation to the retrospective effect of these reforms; however, I will address this within the context of the protection from cruel, inhuman or degrading treatment, and the right to humane treatment, discussed below.
Human rights that are limited by the Bill
Cruel, inhuman, degrading treatment (s 10(b)) and inhumane treatment (s 22(1))
Section 10(b) provides that a person must not be treated or punished in a cruel, inhuman or degrading way. Similarly, s 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 effect of the reforms to parole in clauses 4 and 5 is that certain prisoners (who are serving life sentences), including the named prisoner Craig Minogue, may remain effectively ineligible for parole until they are 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 the prospect of release of certain offenders and diminishing their possibility of rehabilitation. While the Victorian statute book already provides for the possibility of life in prison with no prospect of parole, I accept that introducing restrictive constraints on the granting of parole to certain prisoners may induce a sense of hopelessness in an offender so as to limit the rights in ss 10(b) and 22(1) of the Charter. I note that the plurality of the High Court in Minogue v Victoria 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’.
Sections 10(b) and 22(1) rights have been interpreted as being collectively limited in circumstances where an offender serving a life sentence is given no real prospect of release, which may be contrary to human dignity and amount to inhuman and degrading treatment. Constraining parole for offenders not serving a life sentence, while not resulting in an ‘irreducible’ life sentence, may similarly be considered ‘inhuman’ through the hopelessness that serving a full sentence may engender for that offender.
In light of the High Court decision in Minogue v Victoria, I consider that clauses 4 and 5 of the Bill limit the rights in ss 10(b) and 22(1) of the Charter.
Limitation to section 10(b) and 22(1) by clauses 4 and 5
The objectives for the amendments to the Act in clauses 4 and 5 of the Bill remain the same as they were in the JLA Bill. Both the general provision in substituted s 74AAA and the specific provision in s 74AB are intended to strengthen parole laws in relation to a particular class of offending, in order to further enhance community safety and protection.
Despite the finding by the High Court in Minogue v Victoria, this Government remains determined to avoid the risk posed to society by the release from prison of Craig Minogue and other prisoners convicted of the murder of police officers. The murder of a police officer, someone who serves and protects the community and risks their life to do so, is the most serious example of the most serious crime. These amendments reflect the seriousness of such a crime and serve the important purpose protecting society. There is no less restrictive means of achieving this objective.
As I noted in the previous statement of compatibility, the extent of the limitation on the relevant Charter rights is confined, as the reform will only currently affect the parole applications of three prisoners currently serving life sentences with non-parole periods for the murders of police officers. The reform will also apply to deter any future relevant offending, as prospective offenders will be fully aware of the consequences that flow from such actions.
As I stated in the previous statement of compatibility, I accept that the nature of the limitation is severe for the prisoners affected, because in certain cases (where the individual is serving a life sentence) it will prevent that offender from being released on parole except in very limited circumstances, and those circumstances are not conducive to leading any useful life post-release. I also accept that the limitation is aggravated by the retrospective effect of the provisions, because offenders, including Craig Minogue, would have had an expectation, up until the time the JLA Bill was announced, that they may have had some possibility for release in the future and the capacity to live a useful life post-release.
For these reasons, I conclude that the limitation to the rights ss 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 4 and 5 are incompatible with human rights.
For this reason, new ss 74AAA and 74AB contain the override declarations I have referred to above 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. In this exceptional case, the Charter is being overridden and its application excluded to ensure that the sentences imposed by the Supreme Court for the exceptional and egregious crimes they apply to are fully (or almost fully) served, and to protect the community from the ongoing risk of serious harm presented by Craig Minogue. Consequently, the Charter will have no application to both of these sections in perpetuity. 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.
Finally, and for completeness, I note that the effect of the Bill will be to deprive Craig Minogue of the benefit of the judgement he received in the High Court. However, I do not consider that this alters the analysis of any of the rights in question discussed above. While this might be seen as a particular case of quashing a prisoner’s expectation that he may have some possibility of release, the High Court’s judgement did not affect the legislature’s power to alter the circumstances in which parole may be granted, including in the case of Craig Minogue.
The Hon. Gayle Tierney, MP
Minister for Corrections