The current crisis of confidence in relation to parole is toxic to the credibility of criminal justice. The catalyst was the revelation that the recidivist sex offender Adrian Bayley was on parole when he raped and murdered Jill Meagher in September 2012, and that he had previously breached that parole without legal consequence. In response, the Victorian Government asked former High Court Justice Ian Callinan to review the operations of the Adult Parole Board and we are currently waiting for those findings.
The Callinan review is some strange déjà vu, considering that the Government had already asked the Victorian Sentencing Advisory Council to review the adult parole system in May 2011 in order “to ensure that the parole system best serves the Victorian community, including promoting public safety and reducing re-offending”. The Government has had the Council’s expert advice on that matter at least since March 2012.
The Council recommended – among other things – that the considerations used by the Board when deciding whether to grant parole be replaced with a new general principle that identified community safety as the paramount consideration. The Report recommended that:
“In applying this principle, the Board must consider the nature and severity of harm that is risked (such as the commission of a violent offence) and the likelihood that the harm will occur. The Board should also consider the extent to which the degree of risk can be reduced through particular forms of supervision (such as a new supervision regime developed by Corrections Victoria for serious violent offenders) and through particular conditions.”
From the materials it makes publicly available, elements of this recommendation have been formally adopted by the Adult Parole Board, although how they are implemented remains questionable for two reasons.
First, its procedures are opaque because the Board is not bound by the rules of procedural fairness or the Victorian Charter of Human Rights and Responsibilities. This means that neither its decision-making criteria nor the information on which individual decisions are based is publicly accessible. It also means that it does not publish reasons for its decisions, that victims and interested persons have no formal right to make submissions and there is no formal right to legal representation or appeal.
The Council stated that the rules of procedural fairness were “vital” in decisions affeccting the safety of the community and personal liberty because they promote high-quality, fair outcomes. Here, the offender’s procedural rights go hand-in-hand with those of the community. That’s the nature of human rights: we all have them – even the most unpalatable ones among us. However those rights can be balanced with others where necessary; thus, the ranking of community safety as the prime consideration in release decisions accommodates both the rights of the community to security with those of the offender.
While the concept of according procedural rights to a convicted offender rankles in the tabloid press, administrative decision-making bodies are bound by these rules precisely because they increase the acceptability, accountability and accuracy of decisions affecting people’s legitimate expectations – like community safety.
The other reason why we must question how effectively the Board has been able to privilege community safety is the issue of funding. In 2011-12, the Board considered 10,205 cases – an increase of 1242 from the previous year – at around 50 cases per sitting day. A former Board member recently stated that they had less than eight minutes to consider each case. In the absence of the time and resources to conduct individualised risk assessments for all offenders with due diligence, merely ranking community protection as the prime consideration is inadequate.
The Council emphasised that improving the integrity of the parole decision-making process would require additional resources for a Board already operating under “significant restraints”. The Board’s 2012 annual report noted that it had adopted the Council recommendations it could, but that others involved "legislative and budgetary decisions which are matters for the government". In the absence of further funding to implement the Council’s suggestions, it appears that the commitment to community safety at the level of principle, did not translate into practice.
The media focus has shown us once again that while the aim of protecting community safety is uncontroversial, its means are most definitely not. Much of the coverage has portrayed the issue as one of absolutes and polarities: offender or victim, human rights or public safety, left or right, parole or no parole. These oppositions are the stuff of populist law and order reporting, and they have the opposite impact to that which they intend.
The solution does not lie in the elimination of, or wholesale crackdown on, parole. Contrary to the dangerous media discourse lumping in "recidivist sex offenders", "paedophiles", "prolific killers and rapists", parole applies to a wide spectrum of offenders. It provides a way for the bulk of them – and therefore, for us as a community – to avoid the empirically-demonstrated crime-causing consequences of incarceration.
Contrary to some reports, parole is not a "progressive experiment". Given the economic and social consequences of the lavish use of imprisonment, the appropriate use of rehabilitation and social re-integration is not a partisan issue. It will cost us more as a society to cut parole, than to properly fund parole decision-making.
The Board is only as effective as the funding it is given to devote the requisite time and attention to risk assessment. Parole release is only as effective as adequately funded transition support programs to assist the type of re-entry into the community that maintains public safety. Parole is an emotional topic, which warns against emotive responses. The stakes are simply too high; we need to make a smart, properly funded commitment to public safety. We have had the solution since early 2012. Better late than never.