Second Reading
Resumed from 7 November.
[Speeches and comments from various members]
HON ALISON XAMON (North Metropolitan) [2.57 pm]: I rise as the lead speaker for the Greens on the Sentence Administration Amendment (Multiple Murderers) Bill.
I note that currently section 12 of the Sentence Administration Act 2003 requires the Prisoners Review Board to give the Attorney General a written report that deals with release considerations for a prisoner whenever the Attorney General makes a written request for a report or the board considers it necessary to do so. Schedule 3 of that act sets out the minimum frequency for reports for certain prisoners. The due date for the first report for schedule 3 prisoners varies considerably, depending on the nature of their sentence. After that, the frequency of subsequent reports is generally one every three years. A couple of exceptions require an annual report. This bill applies to two subcategories of schedule 3 prisoners, specifically those who have been convicted of two murders on different days, who are colloquially referred to as serial killers, and those who have been convicted of three or more murders whether or not at the same time, who are colloquially referred to as mass murderers or serial killers. I note that under this bill, those prisoners would still receive the first statutory report, but the bill proposes that any time after that, the minister can fire a direction to suspend any further statutory reports or assessments for resocialisation programs, and that that direction can last for up to six years and an unlimited number of consecutive directions can be made. Upon the expiry of those directions—if that ever happened— statutory reporting under schedule 3 would resume, with the due date of the next report calculated as if the direction had not existed. The board will have up to seven months after the direction ceases to prepare the first report if needed. The advice given to me in the briefing on this bill was that it generally takes seven months to prepare a report.
This bill will give the minister absolute discretion to make a direction. The bill does not specify what matters the minister must, or, indeed, must not, take into account, not even the content of the most recent report. The bill contains no requirement that the prisoner be given an opportunity to be heard before a decision is made. This is despite the fact that a long-term prisoner may be so institutionalised that they do not want to be released, or recognises that they will not be released and therefore may be willing to consent to a direction in order to avoid ongoing drama for them.
The bill does not provide for review. The only exception is judicial review on the ground of jurisdictional error, which the explanatory memorandum states cannot constitutionally be excluded. I understand from the briefing that “jurisdictional error” means that the person does not meet the bill’s criteria. The bill also does not provide for a direction to be varied or revoked. That leaves only one option. A direction relates to statutory reports required under schedule 3 of the Sentence Administration Act. A direction does not relate to reports under section 12. Therefore, under section 12, the minister can still at any time make a written request to the Prisoners Review Board for a report, and the board can, at any time it considers necessary, unilaterally give the minister a written report about release considerations relating to the prisoner. However, it is highly unlikely that this would happen. Indeed, the explanatory memorandum envisages that this would happen only in exceptional cases. The minister is certainly unlikely to request a report in any but exceptional cases, particularly if it is the same minister as the one who made the original direction. Some of the circumstances under which the minister might request a section 12 report are if there is a change of minister and the new minister holds a different view from the previous minister and requests a report; there is support from the public, or, indeed, from the secondary victims, particularly in the case of a family crime; the prisoner develops a condition such as a terminal illness or dementia and prison is no longer an appropriate place for them to remain; and there is the receipt of new evidence—that is, unless a forthcoming bill is passed that would enable an appeal to the court to be made on this ground instead.
I refer now to the most recent report of the Prisoners Review Board, which states repeatedly in the “Chairperson’s Overview” that the board’s workload is challenging. It notes also that there was a 12.6 per cent increase in the number of cases considered by the board in the last year alone. Therefore, it seems unlikely that the board would do anything to add to its workload, unless the circumstances were particularly compelling. Another reason that it is unlikely the board would unilaterally prepare a report is that when recommending release on parole or for approval to participate in a resocialisation program, the board has power only to make a recommendation to the Attorney General and the Governor in Executive Council. If the board knows that its report would definitely not be welcomed by an Attorney General who would strongly like to reject a recommendation for a prisoner’s release to parole, it would probably be a disincentive for the board to prepare a report in the first place.
This is a difficult bill and it raises a number of issues and concerns. I need to acknowledge from the outset that the instigators of this bill were victims and secondary victims who have lobbied very hard for this. This came to our attention in a very significant way in 2016 when Kate Moir, who survived the Birnies, called for a reform to parole laws with an online petition. That online petition went on to receive 41 000 signatures. I note that the link to the petition is now closed, but that page remains. The page indicates the opposition to mandatory parole hearings, which stems from a much deeper concern of Ms Moir that the Birnies’ original sentence for abducting and twice raping her was horrendously inadequate. It has been pointed out that it has been extraordinarily painful for her to go through the process every three years to have input into the release of Catherine Birnie—of course, David Birnie has died. I note that the last time parole was considered, it coincided with Ms Moir’s birthday. She talked about spending her birthday on the phone with the parole board. I know that Ms Moir approached the government of the day at that point to try to get support for changes in these laws. I recently heard an interview on the ABC with Evalyn Clow, whose sister and her sister’s three children were murdered in Greenough in 1993. It made for really harrowing listening. She talked about the trauma she goes through every time she has to revisit the murders through the parole hearings, bearing in mind that her family members died in one of the most horrendous cases I can recall. I cannot take away from the very real trauma that not just secondary victims but also, as in the case of Ms Moir, direct victims of the class of prisoner to whom we are referring go through when they deal with the issue of parole. This is one reason this is a very complex issue to try to navigate, because we also need to make sure that we maintain the integrity of our parole system. We have to remind ourselves of the purpose of parole.
I want to make some other comments about concerns I have around some of the changes in this bill. I am concerned that this bill applies to children as much as it does to adults. I recognise that no children are currently captured by the provisions of this legislation. I also recognise that for a child to be subject to the provisions of this legislation, they would have to be convicted of some absolutely horrific crimes. But I also think about the circumstances through which a child might find themselves in that situation. I think about the number of children who are detained at Banksia Hill Detention Centre who were born with no chance at all—kids who were born into profound disadvantage and who have foetal alcohol spectrum disorder, for example. I consider a scenario in which a child who has experienced severe disadvantage and severe abuse, has ongoing mental health issues and may also live with cognitive impairment may kill their entire family in one hit for any range of reasons, in which case they would potentially fall within the purview of this legislation. Of course, we are talking in the hypothetical here, but I have to think about how this bill might impact people in the future; it is not enough for me to simply reflect on the people whom it will currently impact. I consider children in detention who have absolutely no-one to advocate on their behalf. There are several children in that situation. I am concerned that all that stands between such a child and direction after direction is effectively one politician with a biro and unfettered discretion. I am concerned that without the possibility of mandatory review times for parole, children could become lost in the system, noting that the matters in sections 5A and 5B of the Sentence Administration Act 2003 will never be re-examined as they grow and develop, all but for one politician with the next election to win. At the very least, I would have preferred that Parliament knew the views of the Commissioner for Children and Young People before debating the Sentence Administration Amendment (Multiple Murderers) Bill 2018. That is probably my principal concern.
I have concerns about the procedure the government proposes to adopt. The bill has not come out of a broad inquiry into parole. It is about time we had one of those. It is very important to start looking at the role of parole around issues of punishment and rehabilitation as a whole. We need to look at issues around merit, whether it needs to be extinguished in certain cases, and the processes that should apply to decisions about it. Instead, Parliament is today being asked to legislate to allow the Attorney General of the day to, effectively, thwart Parliament’s will as expressed in schedule 3 and section 12A, and to duck the responsibilities those provisions impose. The current process does not allow the Attorney General to prejudge their decision on a statutory report from the Prisoners Review Board; this bill will allow the Attorney General to instead suspend the statutory responsibility of the Prisoners Review Board to provide a report. So no prejudging, but the Attorney General will still get to predetermine the outcome for as long as he or she wishes. Section 12 will be maintained, but the Attorney General will have absolute unfettered discretion to simply never use the report. It will come down to whether the Prisoners Review Board will unilaterally use section 12 to present a report it knows will be unwelcomed by the Attorney General. I have already said that will constitute extra work on top of the board’s already challenging workload. It seems highly unlikely to me that that will occur.
The procedure that will be adopted through this bill will be a farce. That, together with the lack of consultation with important stakeholders, is problematic for Parliament in deciding whether certain crimes need to be singled out to ensure that parole needs to be considered less frequently or not at all, and, importantly, the processes that will apply around that. I would much have preferred this to be considered as part of an overall comprehensive consultative review of the way we deal with parole in this state that looked at the necessary reforms holistically, rather than simply trying to single this out. I recognise that it came from an election commitment, but, more importantly, I recognise that it has been driven by secondary victims who find the current process deeply traumatic. At the same time, I am concerned about looking at reform in such a piecemeal way, and I hope that this government undertakes to take a holistic approach to reviewing the way we deal with parole in this state.
[Speeches and comments from various members]
Debate interrupted, pursuant to standing orders.