Yesterday’s decision by Justice Harper to grant leave to Robin Fletcher (referred to in the newspapers as the paedophile witch) for an early review of his extended supervision order demonstrates that increasing the power of parole boards is a tricky thing. In Secretary, Department of Justice v Fletcher  VSC 217, the provision that Harper J had to apply was this one from the SSOMA Act:
21(3) The offender, with the leave of the court, may apply to the court at any time for it to undertake a review of an extended supervision order made by it.
The Department argued that the test for whether leave should be granted should be the same one that the Court of Appeal uses to determine whether to grant leave to appeal against a sentence. That’s a surprising analogy for the Department to draw, given that Attorney-General’s view, put to Parliament in the Statement of Compatibility to the recent bill extending the monitoring scheme that ESOs are neither punishment nor penalties. In any event, Harper J rejected it:
It is not an analogy that attracts me. A person who is made subject to an extended supervision order is no longer a prisoner under sentence. A person in Mr Fletcher’s position should in my opinion be given leave to apply for a review of such an order if the court is satisfied that new facts or circumstances, justifying such a review, have arisen since the order was made.
It is a little disappointing that the Charter’s interpretation mandate wasn’t referred to in reaching this conclusion.While I don’t think that parole decisions trigger the Charter s. 21 protections for deprivation of liberty, it’s pretty clear that an ESO does. The English cases on the ECHR equivalent to Charter s. 21(7), described last post, arguably could suggest that defendants should have a ready chance to challenge ESOs in a court to test the continuing need for the order, something that would surely have favoured Harper J’s approach.
Anyway, what is interesting is Harper J’s reasons for granting Flectcher a review. He didn’t seem to be moved by alleged factual changes of circumstance about Fletcher’s condition or the expertise that led to the original ESO. Rather, it was legal changes that interested him, notably the amendment to the SSOMA in 2006 (itself the result of a challenge by Flectcher) to permit the Adult Parole Board to order that Fletcher live within the permiter of his former prison:
I regard the giving to Mr Fletcher of a direction, unlawful when made, that he reside within Ararat Prison, as a new fact and circumstance. Had it been known, when the original hearing before Gillard J took place in May 2006, that this direction was proposed, his Honour’s attitude to the Secretary’s application would have been different. So much can be said with confidence, because his Honour subsequently held that the direction was unlawful. And, for the reasons to which I have already referred, Mr Fletcher’s attitude would also have been different.
I acknowledge that the giving of the direction was a new fact or circumstance partly because it was, when given, beyond power; since then, Parliament has amended the legislation, so that what was once unlawful is now within power. To that extent, the “new” fact or circumstance has been removed.
In my opinion, however, the point – that the direction to reside on land within the perimeter of Ararat Prison was a fact or circumstance which might have affected the outcome of the Secretary’s application before Gillard J – remains good. Any judge, it seems to me, would be bound – when considering whether he or she was satisfied to the “high degree of probability” required by s.11(1) of the Act – by the reasoning of the High Court in Briginshaw v Briginshaw….
Now, there’s two ways this has a wider significance than Fletcher’s case. First, it shows that an increase in the powers of the Adult Parole Board can trigger issues of unfairness in relation to people who are made susceptible to the Board’s authority before that increase. That’s a point that might, arguably, also apply to any decision by Hulls to continue to exempt the Board from the Charter, to the extent that the people making the order – or, as happenned in Fletcher’s case, the defendant, in consenting the order – may otherwise anticipate that the Board’s decisions will be subject to Charter s. 38(1). Indeed, Fletcher – who received his ESO after the Charter passed the lower house – might even have had a slim argument that the exemption of the parole boards late last year was a further change in circumstances justifying a review of the ESO.
Second, in any event, the discussion of Briginshaw also shows that, the more powerful the Board, the tougher the test the courts will impose for making people susceptible to the Board’s powers in the first place. And, conversely, if the Board was subject to Charter s. 38(1), then the threshold for making orders would be lower. Justice Harper’s judgment is just one instance of a broader phenomenon in sentencing law, where ‘tough’ approaches to law and order by the legislature and the executive can sometimes have the opposite effect in practice. The current controversy in South Australia about a magistrate’s (entirely conventional) view that the harshness of prison conditions is a mitigating factor in sentencing decisions is a case in point. So, it’s possible that a decision by Hulls to end the exemption of the Adult Parole Board from the Charter may lead to the courts imposing more ESOs, whereas the converse decision may result in the dreaded outcome of an ESO being refused and an offender commiting further crimes.