Time to end Victorian parole board's human rights exemption
“Isn’t it fundamental that the people who have the least rights in society - those in custody - should have those rights protected?”
Victoria’s parole boards are the only organisations to be handed an express exemption from the state’s Charter of Human Rights.
The Adult Parole Board and Youth Parole Board also do not have to follow the rules of natural justice, such as the opportunity to be heard, a lack of bias and decision-making with a basis in reason.
According to critics, these exemptions have led to parole becoming increasingly punitive, political and difficult to access, something which they say is critically impacting rehabilitation and recidivism.
A human rights free pass
Victoria’s Charter of Human Rights was launched in 2006. But since then, the state government has continually provided an exemption for the Adult Parole Board and the Youth Parole Board, meaning they do not have to consider human rights directly in their decisions to grant or deny parole.
If subject to the Charter, the parole boards would have to consider the human rights of those in prison and act in a way that is compatible with human rights.
The parole boards are already exempt from following the rules of justice, and decisions made by them cannot be appealed in court. The boards rarely actually interview the prisoner applying for parole, and the person often never sees the reason for the eventual decision.
Doogue + George director Bill Doogue says the exemption provided to the parole board is “terrible” and has contributed to it becoming far too weighted away from prisoners.
“It has moved more markedly to this situation where people are so averse to risk that it’s not doing what it’s meant to be doing,” Doogue says. “In prison you would not say to a client that they will be released at the earliest possible parole date. That would be a nonsensical thing to say.
“It’s a denial of natural justice. It’s a hangover of the system shifting across to one that’s weighted towards victims. The Charter should apply. Isn’t it fundamental that the people who have the least rights in society - those in custody - should have those rights protected?”
Other jurisdictions in Australia, including Queensland, do apply human rights standards to their parole boards, as do the likes of the United Kingdom, New Zealand and Canada.
A punitive parole process
The Human Rights Law Centre (HRLC) has campaigned for the parole boards to be subject to the Charter of Human Rights for more than a decade, arguing this would lead to more flexibility and the ability for decisions to be customised for individual cases.
In its submission to the recent Victorian criminal justice inquiry, the HRLC said that reforms have made it increasingly difficult to access parole and fulfil the associated conditions, and this has had a disproportionate impact on First Nations Australians.
The onus has been placed on individuals to access parole, and they must have completed certain programs in prison, which are significantly limited. The potential parolee must also demonstrate they have access to stable and secure housing if they are released.
In Victoria, the number of women being granted parole has plummeted in recent years. In 2006-07, 26 percent of women released from prison were on parole, but by 2018-19 this figure fell to 4 percent.
The number of young people receiving parole has also dropped dramatically, with 160 parole orders made in 2019-20, down from 243 in 2017-18.
The HRLC argued that the Victorian government should create an assumption that an application for parole be automatically made at the earliest possible date, and that the exemption from the Charter for the parole boards be scrapped.
No natural justice
The current situation in Victoria sees prisoners often not even able to argue their case for why they should be able to access parole, Doogue says.
“There’s an emphasis on victims to the degree that victims are all asked about what should happen and they are afforded due process, but the person trying to get parole isn’t,” he says. “The judge has made a considered decision about when a person should be released, what’s the point if it’s not heeded?
“People are serving longer sentences than they should and then the judges wanted them to. The judge has read psychology reports, medical reports, they’ve heard from the victim and families and they’ve made an assessment.”
Victoria’s parole system is also inherently racist, Doogue says, due to requirements that people in prison show they are members of a community and have a place to stay.
“It’s fundamentally racist - it’s appalling,” Doogue says. “You can’t parole if you can’t meet the conditions of parole, such as showing that you’re going to be in the community and staying in the right place in the community.
“What that means is if you’re an Indian person and sentenced to a non-parole board, you can never get parole because you can’t comply. It’s fundamentally fucked.”
The Adult Parole Board in its professional standards says its members should still “respect and promote” the human rights set out in the Victorian Charter.
“That the Board is exempt from the Charter of Human Rights and Responsibilities does not mean that the Board, and Board members, should ignore the human rights of persons with whom it deals,” it said.
“On most occasions, Board decisions and its general approach will be consistent with human rights. What the exemption means is that, if warranted in a specific situation, the Board may make a decision that is outside the Charter.”
The Board also outlines that a prisoner can write to a request a review of its decision, but the Board itself determines whether to grant this appeal or not.
It also confirms that it is exempt from the rules of natural justice, which include the right to be heard by the decision-maker, the right to be represented by a lawyer and the right to look at the information and evidence.