The Charter vs parole boards

I’m weeks late on a very big Victorian development. (Proves I’m not keeping tabs on the Public Accounts and Estimates Committee, the Herald Sun or ACTHRA!) As I blogged about six months ago, three public authorities who would otherwise be bound by the Charter’s conduct mandate have been exempted from it by regulation, due to expire at the end of this year. The state’s three parole boards, we were told, needed time to ensure that their operations would comply with the conduct mandate, despite it having been enacted almost eighteen months before it commenced. Now it seems that thirty months (and maybe forever) will not be enough.

Here’s what Attorney-General Rob Hulls said in evidence earlier this month before the PAEC:

Mr BARBER — The adult parole board, Youth Residential Board and Youth Parole Board have all be exempted from the human rights charter by regulation and the human rights commission said that they were unaware of the rationale for that and that such provisions were extremely significant. I believe your response was that this was done for a period of one year in order to allow for a review of the impact of the charter on those bodies’ work and also to consider the resources that they would require to comply. Can you let us know what those resources are, the progress of the review and whether it will still be for only one year

Mr HULLS — It is a good question. I actually met with the heads of the Youth Parole Board and adult parole board only last week about this very matter, because they are seeking an extension of the exemption. They have put their case to me in relation to that and I have not made a decision yet about whether to go down that path or not. They have suggested that natural justice is not afforded to people seeking parole and they have to make decisions, often very quickly, in the interests of the broader community. They are aware that no right under the charter is absolute, but they are indeed seeking a further period of exemption.

This is the first time that the parole boards’ concerns (and the government’s response) have appeared on the record. Unfortunately, these are slim pickings and they leave me worried about the quality of legal analysis that’s occurring behind the scenes.

Section 69(2) of the Corrections Act 1986 says that the Adult Parole Board ‘is not bound by the rules of natural justice’ and the parole boards appear to be worried that Charter s. 38(1) will nevertheless impose just such a requirement. They are presumably also worried that Charter s. 38(2) won’t let them off a hook, as the Corrections Act doesn’t tell the Board not to follow the rules of natural justice and instead just leaves procedure up to them. Hulls’s reference to how ‘no right under the charter is absolute’ is a reference to Charter s. 7(2), I guess, but my (admittedly controversial) view is that Charter s. 7(2) doesn’t restrict the requirements of the conduct mandate (though it may prevent a declaration of inconsistent interpretation about s. 69(2)).

So, I’m with the argument so far. But what Charter rights are the parole boards concerned about? Here are some candidates:

21(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

21(7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must- (a) make a decision without delay; and (b) order the release of the person if it finds that the detention is unlawful.

24(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-… (g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and (h) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution…

Now, I am far from convinced that any of these rights require anything of the parole boards when it comes to exercising their core functions of deciding whether or not to release (or end the release) of people still under sentence.

These easiest ones to deal with are ss 24  & 25. I think it’s highly doubtful that a parole decision is either a determination of a criminal charge or a civil proceeding. The determination of a criminal charge is the decision about guilt and sentence, i.e. the defendant’s eligibility for punishment; further decisions about whether those punishments are actually imposed are not about the criminal charge. A civil proceeding is decision about legal rights, but release on parole isn’t a legal right. Indeed, the UK House of Lords in Smith v R ex parte Parole Board [2005] UKHL 1 , which concerned the applicability of the ECHR’s fair hearing right to the revocation of parole, unanimously rejected the criminal charge argument and was quite doubtful about the civil one (even though the ECHR’s and ICCPR’s fair hearing right is expressed in much wider terms than CHarter s. 24(1)). In short, because parole isn’t a legal right, it doesn’t attract any of the Charter rights about legal rights, any more than Mum and Dad’s decision to ground the kids does.

Charter s. 21 is trickier. While some people think Charter s. 21 is only about pre-trial process, I think the better view is that it is applicable to post-trial detention (e.g. imprisonment) too. But I am much less convinced that a parole decision (especially one about whether or not to grant it) is a deprivation of liberty, as that deprivation occurred when the person was originally sentenced. And I’m also unconvinced that, just because a parole board isn’t required to obey natural justice, its decisions therefore aren’t ‘in accordance with procedures, established by law’.  The Board’s composition, functions and powers are established by law.

Now some may counter that an ECtHR decision, Weeks v UK [1987] ECHR 3, held that a refusal to give someone parole is a deprivation of liberty and the House of Lords case I referred to above rejected a challenge based on the ECHR equivalent to Charter . 21 on the grounds that, in England, natural justice does apply to parole decisions. But (as near as I can tell) the English approach to parole differs in crucial ways from Victoria’s. At the time of the Weeks case, England had an indeterminate sentencing system (e.g. where Weeks, a 17 year-old armed robber, was given a life sentence simply to keep him under life-long supervision and control by the Home Secretary) and, at the time of Smith, English prisoners have a right to release at the end of their non-parole period. So, the core requirement of the ECHR cases – that there should be judicial (or judicial-style) review of whether or not parole decisions conform to the bounds of the original decision to punish – don’t seem to be applicable under the Australian approach to parole, with its well-established processes for fixing of both non-parole period and head sentence, and principles for determining the relationship between them and the principles of punishment. (Moreover, the key ECtHR finding – that a parole board can be a court for the purposes of the ECHR’s habeus right – is inapplicable to Charter s. 21(7), because the Charter defines ‘court’ narrowly to cover only official courts.  So, the English approach can scarcely be copied over to Victoria.)

In short, I think the applicability of any process rights to Australian parole decisions is doubtful. What alarms me about developments to date on the exemption of the parole boards from the Charter is that the legal analysis on which the debate turns hasn’t to date is that it hasn’t been played out on the public record. (The Hun refers to a press release by the Board, but damned if I can find it.) There’s considerable danger here of legal opinions being thrown around willy-nilly, citing UK cases or what have you, but without necessarily having a lot of reality (or even analysis) to them. There haven’t been any (published) court decisions on any of these legal questions yet, presumably because of the parole boards’ exemption. So, the result of the exemption is that the very question of whether or not to continue the exemption will depend on  guesswork by lawyers, including – I imagine – the various ex-judges or whoever they are on the parole boards, who may well have a degree of interest in exaggerating the legal dangers afoot, given the peace of mind that will come from a permanent exemption. It may well be that the parole boards are just concerned about the doubt that surrounds the Charter’s application to them. But all public authorities face this sort of doubt. Indeed, the parole boards have so many protections from review – thus narrowing the available remedies under Charter s. 39(1) – that they are much better placed to withstand the threat of a flood of meritless litigation than most other public authorities.

So, what are Hulls’s options?:

First, he could just repeal s. 69(2). Is natural justice that bad?

Mr BARBER — So it may not really be a question of resources, then?

Mr HULLS — They will have to put to me not only a very strong argument as to why they should be further exempted for a period of time but also, if they were not exempted, what resources they believe they would require to fully adhere to the charter. It may not be just a question of resources; that is true. It may well be, on the decisions they make and the timeliness of those decisions that they are required to make when they are dealing with people’s liberty — they do not give reasons for their decisions, as you are probably aware — as they have initially put to me, that it is important that they continue to operate in that way. As judges they admit that in all likelihood they are denying people natural justice. But that has always been how the parole board operates and if you change that, and you put in place a whole range of appeal rights and they have to give voluminous reasons for decisions and the like, it would tie down the work of the parole boards and, in their view, they could well become unworkable. That is their argument. I want to see for myself and get a better feel for the way the boards operate and I will make a decision in due course. that this was done for a period.

Hulls sounds rightly skeptical of these claims of the horror of natural justice, which all courts have held have to fit the context they operate in. Doubtless, there’ll be changes, but no competent lawyer would suggest that the parole boards would have to turn into courts. Indeed, the House of Lords rejected any mandatory requirement for oral hearings. I’m very dubious that the courts would require any appeal rights (beyond the current judicial review) or voluminous reasons. If there was any danger, s69(2) could be replaced with some minimum admin law style requirements.

Second, he could enact a law requiring the parole boards to conduct their proceedings in a way that ensures that they can make timely decisions given the resources that are available to them. That’ll give the parole board the s38(2) cover it needs (to the extent that Charter s. 7(2) doesn’t) assuming the issues of time and resources really are a problem that the boards are claiming them to be.  If the parole boards cannot live with even that doubt, enact a law that requires them not to give ‘voluminous’ reasons ‘ or appeal rights or the like. Either way, that’ll put parole board decision-making out of the Charter’s reach, but let courts have their appropriate say on whether the law granting that exemption is compatible with the Charter (with all the non-legal consequences that carries.) If the parole boards can’t even cope with that, then use the override, with its accompanying transparency and five-year sunset. This option will still leave the parole boards subject to other Charter rights, like life and freedom of religion.

The third option – the one the boards want – is, of course, the worst one: to keep on keeping on with the exemptions. This keeps the issue out of both parliament and the courts (not to mention the public eye) and, instead, crams the human rights dialogue into backroom discussions between the parole boards and the Department of Justice (whose secretary sits on the parole boards!) It also exempts the parole boards from every Charter right.

So, what’ll Hulls do?:

Whilst I understand their arguments, I am somebody who is pretty passionate about the human rights charter and I want it to become a permanent part of the legal landscape in this state; I do not want it to become a political football. I hope that whoever is in power over the next 10 years in Victoria will ensure that the human rights charter remains in this state. But to give due regard to the arguments they are putting, I have told them I actually want to go down to the parole boards and see personally how they operate — not just the adult parole board but also the Youth Parole Board — before I make a final determination in this area. I want to see firsthand how they operate and after I have viewed how they operate I want them to further make out the arguments on why they require a further exemption in relation to their operations for a period of time. I am due to go down there, I think, in the next couple of weeks, to both the adult parole board and also the Youth Parole Board, and a decision will be made in the next short period of time. To get to the nub of your question, yes, they have sought a further exemption and I am giving consideration to that.

I’ve got to say that I don’t quite see how watching how the boards operate is really going to help. Again, that’s not a process that screams ‘human rights dialogue.’ But he’s certainly keeping the faith and I’m impressed in many ways with this answer.

The key bit of realpolitik here is the ‘political football’ reference. He’s not talking about girls in footy. If there’s one thing that is always a lock on the front page of the Herald Sun, it’s parole and, especially, any legal technicalities that will let the scum out on the streets. Parole boards, or interest groups associated with them like victims and prison guards – not known for their solid support for defence procedural rights – are in a good position to put a lot of pressure on governments. Hulls has his eye on the quite distinct possibility that Victoria may become, not only the second Australian jurisdiction to have a human rights statute, but the first western jurisdiction ever to repeal it (and, therefore, Hull’s legacy.) Nothing would make that fate more certain than a perception that the Charter was to blame for a crime committed by a parolee. White-anting the Charter by regulation (say until the 2011 review) might seem like the safer bet.

So, we’ll know (well, at least, a decision will be made) ‘in the next short preiod of time’. Time for some hyperbole: when someone writes a history of the Charter a few decades from now, I think that Hull’s decision, whichever way it goes, will feature as a key decision on the path to the Charter’s ultimate fate, whatever that is.

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