Last month, the chair of the UK’s parole board, Nick Hardwick, resigned after three High Court judges ordered the board to reconsider its release on parole of serial sex offender John Worboys.
Two victims successfully challenged Worboys’ release on very strict conditions after he had been in jail for ten years. But the court ruled the parole board should have inquired further into Worboys’ offending to determine the credibility of his account to the board. It also held that a rule preventing the board from publicising its reasons was invalid.
Like the UK, parole systems in Australia have received sustained criticism recently.
Parole boards, like courts, were established as independent and impartial bodies, particularly in relation to high-profile, emotive and controversial cases. The Worboys case highlights just how important this principle is.
The battle between politics and the law
In recent years, there have been three inquiries into parole in Victoria, two in New South Wales, and five in Western Australia. Reforms were necessary and have, in many cases, improved the system.
In a highly risk-averse environment, there has been a struggle for supremacy between parliaments, courts and parole boards.
In response to public pressure and recent reviews, governments have diminished or removed the powers of courts and parole boards, and restricted or explicitly guided their discretion. Examples of this include mandatory or presumptive non-parole periods, standard non-parole periods, and standard sentences with presumptive non-parole periods. Community safety is now legislatively declared as the paramount consideration in parole decision-making.
The composition of parole boards has also changed. New members and new chairs have been installed, often on a full-time basis.
Boards are increasingly bypassed when dealing with high-risk offenders who may be subject to indefinite post-sentence extended supervision or detention orders. Victoria has just established a Post-Sentence Authority to manage such cases. In some jurisdictions, enhanced panels, or two-tier reviews, are required to decide these cases.
Some governments have passed laws directed at individual offenders, such as Julian Knight, or small groups of offenders, such as police killers, that have effectively prevented them from ever being released from prison.
Victims’ voices are now commonly heard through representation on parole boards. Victims are also increasingly provided with information through victims’ registers. In addition, they may be able to make submissions to boards considering an offender’s release and are notified when an offender has been granted parole and the conditions of parole.
Most jurisdictions have recently passed “no body, no parole” laws, which are designed to decrease the likelihood of release for some offenders.
What these changes have meant
All of these interventions display a progressive loss of faith in these independent bodies. They also show increasing aversion to risk and extreme sensitivity to what governments perceive to be a growing lack of public confidence in the criminal justice system.
However, the evidence does not support the public’s lack of confidence in parole boards.
In our survey of 1,200 adult Australians, 46% of respondents agreed that “prisoners should be released to serve the last part of their sentence in the community under supervision”, while 38% disagreed. And 68% agreed society has an obligation to assist a person’s re-entry into the community after a prison sentence.
Respondents indicated their confidence in parole boards in two ways.
First, 71% of respondents agreed that parole boards try to “be fair when making decisions”.
Second, most respondents reported a preference for parole boards over courts in their ability to make parole release decisions; 61% agreed parole boards are in a better position than judges to choose appropriate release dates.
Following the decision in the Worboys case, prisons expert Theodore Dalrymple described the UK parole system as “disgraceful in theory and irredeemably unworkable in practice”, and called for its abolition.
To date, Australian governments have resisted the temptation to abolish parole completely. However, they have too often succumbed to perceived community pressure to restrict parole and limit parole authorities’ independence and powers.
Parole is an imperfect system and mistakes are inevitable. Nevertheless, like sentencing, it should remain in the hands of impartial and independent bodies. Parliaments should remember that an effective parole system provides the community with a valuable mechanism for promoting its safety.
Authors: Arie Freiberg, Emeritus Professor of Law, Monash University