Corrections Amendment (Parole) Bill 2018


Ms PENNICUIK (Southern Metropolitan) — I rise to speak on the Corrections Amendment (Parole) Bill 2018. The bill that we have before us today comes to us as a result of a High Court challenge brought by Craig Minogue. The court found that section 74AAA of the Corrections Act 1986 did not apply to Mr Minogue because he was not sentenced on the basis that he knew that or he was reckless as to whether the deceased victim, Constable Angela Taylor, was a police officer at the time of the murder. The High Court found that only the sentencing remarks made by the sentencing judge at the time could be relied upon to make that assessment. This bill basically rewrites section 74AAA to clarify that position as a result of the High Court decision. In fact it is making technical amendments to that particular section. In August 2017 the High Court also handed down a decision affirming the validity of the power of the state to limit parole and specifically with regard to the prisoner, Julian Knight, based on the Corrections Amendment (Parole) Act 2014.

I would like to also send my thoughts and feelings to the family of Constable Angela Taylor, who throughout the public debate on this particular issue over the last few weeks and months have had to go back, relive that time and have their grief et cetera reopened. I certainly very clearly remember the events of the Russell Street bombing, which horrified the whole community and has had a lasting legacy not only on the family and friends of Constable Taylor and the other police officers that were involved on that day but on people who were injured and were near the event and witnessed the event, who were all traumatised. As I said, an event like that has a lasting effect on the community.

This bill harks back to two bills. It harks back, as I said, to the 2014 Corrections Amendment (Parole) Bill, which introduced a specific ad hominem section to the bill relating to the prisoner, Julian Knight. At the time that bill went through the Parliament I spoke on the bill. The Greens did not oppose that legislation. However, we certainly deliberated for quite some time as to the merits of that bill.

I said at the time there had been quite a few changes made to the parole system and the considerations that the Adult Parole Board of Victoria must take into account when considering an application for parole. In fact prior to the Ogloff report, we had the Callinan report and all the very detailed discussions that those reports went to concerning the problems with the parole system. Justice Callinan found, of course, that a lot of it was under-resourcing of the parole system and a lack of information between the police, Corrections Victoria and the adult parole board, leading to mistakes being made. I said a couple of times during that debate and subsequent debates that there was a lot of undermining of the parole board, which I thought was unfair, given the workload that they had to deal with and the lack of resourcing and all of those other issues.

There have been changes to the parole board, such that it now has a two-stage process for serious offenders, which was something that we had advocated for for a long time. There is a great cohort of people who come before the parole board who are not serious offenders, and of course they benefit from being granted parole. So serving part of their sentence on parole, being supervised by parole officers and having conditions perhaps attached to their parole helps those people reintegrate into the community. Of course there is always a need for more services to assist prisoners to reintegrate into the community; in particular housing is an issue that faces people who are released on parole or even released post-sentence. But in terms of serious offenders, there is a different system in place now. The way the adult parole board approaches an application by a serious offender is different from its approach to other offenders, but the paramount consideration is community safety, amongst other considerations.

In 2014 I made the comment that we do not necessarily want to see the Parliament having to deal with further ad hominem bills, but we do have one here now. Mr O'Donohue was talking about his private members bill. That specifically related to Craig Minogue. This bill also has a section that specifically relates to Craig Minogue. I have been advised by the government that there are three prisoners in the system who have murdered police officers and who have life sentences, but with non-parole periods attached to those life sentences. I think this legislation only applies to those prisoners who have life sentences with non-parole periods. If a person was to be sentenced by a court to less than a life sentence, say, 25 years with a non-parole period, that person could still be released after 25 years, because on my reading of it — something we can talk about in committee — this only applies where there is a life sentence.

But I am concerned that this bill — while it makes changes to section 74AAA to address the High Court decision with regard to the appeal made by Mr Minogue and also to, as it says, put beyond doubt that the legislation applies to Mr Minogue — has that section that specifically applies to him. So my question would be: does that mean that the government is not confident that its changes to section 74AAA will apply to every prisoner in this situation without having to bring in further ad hominem amendments to name further prisoners — that is, the other two — when it becomes the case that their non-parole period is approaching and they may end up making an application for parole?

I have confidence in the parole board, in terms of those types of prisoners, applying the tests that the adult parole board is meant to apply, and I hope that would mean those prisoners would not be released, because if they were to pose a risk to community safety then they would not be released by the parole board. So I am concerned that we may end up with more bills naming particular prisoners, and I think the government and the Department of Justice and Regulation need to have a look at this issue so that the Parliament is not going to be facing further legislation naming particular prisoners. That is something I mentioned four years ago as a possibility, and it is a possibility. It is happening today as we are debating this particular bill.

The bill that inserted the section that is being amended, section 74AAA, was introduced by the government in December 2016 as the Justice Legislation Amendment (Parole Reform and Other Matters) Bill 2016, which included the section regarding the non-release of prisoners who have been convicted and sentenced as a result of murdering a police officer. The other part of that bill was regarding prisoners who were not cooperating with regard to the location of the body of their victim. That is not relevant to this particular bill today, but the other section is. The Greens did not support that legislation, and the reasons were that, as I said at the time, that legislation set a precedent that the Greens believe should not be set in the law and in fact is unnecessary for a number of reasons.

As I said, the previous Parliament spent a lot of time considering parole and parole reform. As a result of the Ogloff review and the Callinan review there were a number of changes made. That particular legislation put in place a regime that categorised victims, categorised offenders and took away the discretion of the courts and the adult parole board to deal with particular circumstances in every case, and it introduced a type of mandatory provision that we have always spoken against. We believe that the judiciary and the adult parole board should be able to deal with particular circumstances put in front of them, as they have the expertise, the experience and all of the information with regard to particular circumstances in front of them.

I also said that the problem raised by this particular provision is that it is making a certain category of offender separate from the rest of the prison population and a certain category of victim separate from the rest of the community. It is saying that if a person murders a police officer they would have a presumption against parole, and that would be different from the sentence for a person who murdered any other person. This is a difficult area because it categorises people based on their occupation, notwithstanding that it is a very serious matter to murder a police officer — and we do take that seriously, and of course the courts have taken it seriously because they have imposed life sentences on people who have murdered police officers. But I think the point to make is that in the second-reading speech it is asserted that to murder a police officer is the worst type of murder.

Well, I am not sure, and particularly in the case of this particular provision, which also goes to the idea of being reckless as to whether a police officer may be murdered, that being reckless as to whether a person is seriously injured or murdered as a result of your action is the same as cold, hard premeditation, and I think a court would normally see a difference between those two things. I would also say that the murder of a police person, as serious as it is, should not be held up as being more serious than the murder of a child, the murder of your partner, the murder of a young woman walking home at night through a park or any other murder. And certainly the provision does not take into account the circumstances in which the murder was carried out, which may be cold, hard premeditation; may be recklessness; or may be more spur of the moment as opposed to a murder where somebody is, for example — as horrible as it may be — tortured or kept in confinement or something over a long period of time. So this provision that was put in the 2016 bill raises all these issues that prevent the court from taking those sorts of circumstances into account.

I agree with Mr O'Donohue that it is unfortunate that when we have a bill such as this racing through the Parliament in one week that we do not have a report from the Scrutiny of Acts and Regulations Committee to look at. He does make the point that there are two different statements of compatibility, the one that he attached to his private members bill and the one that the government has attached to this. There are two sections in the bill, subsections (4) and (5) of new section 74AB — the section on Mr Minogue — that say the Charter of Human Rights and Responsibilities does not apply to those sections. There is no response from the Scrutiny of Acts and Regulations Committee as to those provisions.

I have said in this place many times that we should not be considering bills, particularly bills with very obvious human rights implications, in the absence of a report. This bill could very well pass through this Parliament this week, and that there is no report from the committee on this bill is really unacceptable. I know the concern is that the prisoner in question may be released by the parole board. I think that is highly unlikely. Given the considerations that the parole board has to take into account on any application, I do not see how this prisoner would be able to satisfy those considerations. If that is not the case, then the government has a problem with the provisions, and I think that is what needs to be looked at very seriously.

There are some other provisions in the bill over and above the statements in the provisions of the bill with regard to the non-application of the Charter of Human Rights and Responsibilities. There is one that did jump out at me, and that is in terms of proposed new section 74AAA(2) and the board having regard to evidence led at the trial. It may be of course that some evidence led at the trial may or may not have been deemed by the judicial officer to be admissible. That is not clarified in the bill. A lot of evidence can be led at a trial and some of it can be deemed by the judicial officer to not be admissible. I would like to talk about that particular issue as well.

I have not had the opportunity to really consider whether this substitution of section 74AAA is going to amend the problem as the government sees it, because we certainly do not see the same problem. There is also no report from the Scrutiny of Acts and Regulations Committee to give us some guidance. That committee provides the Parliament with excellent guidance on these issues, but we do not have that before us. Those are the concerns that the Greens have with the bill before us today, and I look forward to some questioning of the government with regard to those provisions in the committee stage.