Set up to fail? Examining Australian parole compliance laws through a therapeutic jurisprudence lens

• Author: Max Henshaw, Lorana Bartels and Anthony Hopkins
• Position: Graduate-at-Law, HWL Ebsworth Lawyers/Professor, Australian National University; Adjunct Professor, University of Tasmania/Senior Lecturer, Australian National University
• Pages: 107-136

SETUP TO FAIL?EXAMININGAUSTRALIANPAROLE

COMPLIANCE LAWS THROUGH A THERAPEUTIC

JURISPRUDENCE LENS

MAX HENSHAW*,LORANA BARTELS**AND ANTHONY HOPKINS***

ABSTRACT

With growing prisoner and parole numbers, Australia is demonstrably failing to

reduce recidivism and facilitate desistance from crime. This paper examines

Australia’s parole compliance regime through the lens of therapeutic jurisprudence

(‘TJ’), which we argueprovides a valuable perspective for understanding how these

laws can operate to break or further entrench the cycle of recidivism. Our analysis

indicates that these laws are not currently ‘TJ-friendly’, as parole boards have little

engagement with offenders, breaches of parole conditions are oftensubject to

disproportionate responsesand there is no legislative obligation for jurisdictions to

integrate support services for parolees.

IINTRODUCTION

Parole is a ‘form of conditional release of offenders sentenced to a term of

imprisonment, which allows offenders to serve the whole or part of their sentence

in the community, subject to conditions’.1Any reform of this process necessarily

requires careful consideration of matters such as public safety, retribution and

rehabilitation. The community’s response to high-profile incidents such as the

death of Jill Meagher, who was raped and murdered by parolee Adrian Bayley in

Melbourne in September 20122and, more recently, the killing of Kai Ho by parolee

Yacqub Khayre in June 2017,3illustrate the sensitivity these matters naturally

invoke. They also reinforce the high stakes involved in discussing and successfully

managing those on parole.

* Graduate-at-Law,HWLEbsworthLawyers

**Professor,AustralianNationalUniversity; AdjunctProfessor,UniversityofTasmania.

***SeniorLecturer,AustralianNationalUniversity

1ArieFreibergetal,‘Parole,PoliticsandPenalPolicy’(2018)18QueenslandUniversityofTechnology

LawReview191.

2ABCNewsOnline,‘ManChargedwithRape,MurderofJillMeagher’,ABCNews(online),28

September2012<http://www.abc.net.au/news/2012-09-27/man-charged-with-rape-murder-of-jill-

meagher/4284826>.Fordiscussion,seeLoranaBartels,‘ParoleandParoleAuthoritiesinAustralia: A

SysteminCrisis?’(2013)37 Criminal LawJournal357.

3BenDoherty,‘YackubKhayre:Melbournesiegegunman’shistoryofviolentcrimeand drugs’, The

Guardian(online),6 June2017<https://www.theguardian.com/australia-news/2017/jun/06/yacqub-

khayre-melbourne-siege-gunmans-history-of-violent-and-drugs>.

108University of Western Australia Law Review Vol 45(1):107

Australia’s prison population has increased rapidly in recent decades. In the

December 2018 quarter, there were nearly 43,000 people in full-time custody in

Australia.4This constituted a 4 per cent increase over the previous year,5while the

imprisonment rate rose from 66 per 100,000 in 1985 to 218 in December 2018.6

There were 17,656 people on parole in Australiain December 2018, the highest

number on record.7Meanwhile, according to the most recent Productivity

Commission Report on Government Services, the proportion of adults released

from prison who return to prison within two years is 46 per cent.8

These data indicate that current approaches to prisoner re-entry are not

effective.9 There is a currenttendency across Australia to reduce access to parole

and/or increase and tighten conditions of parole,10part of a broader ‘tough-on-

crime’ campaign,11which generally has done little to resolve – or even seek to

resolve – the underlying causes of offending.12 This approach was arguably

entrenched as the norm following the review of the Victorian parole system

conducted by former High Court Justice Ian Callinan AC QC, which was initiated

following the aforementioned murder of Jill Meagher. Not surprisingly, the primary

thrust of this report and, to a lesser extent, others of its kind,13was to advocate for

public safety, risk aversion and the rights of victims. These considerations are

understandable, and indeed essential, but are being pursued in a manner that is

neithereffectivenor responsive to the underlying causes of criminal behaviour.

Both the communitygenerally and offenders are suffering as a result.

4AustralianBureauofStatistics (‘ABS’), ‘Corrective Services,Australia,DecemberQuarter2018’(Cat

No4512.0,2018).

5Ibid.

6Ibid.

7Ibid.

8ProductivityCommission,ReportonGovernmentServices2018(2018)TableCA.4. Return duetothe

cancellationorrevocationofparole orders isincludedinthismeasurement.

9For a thoroughexamination,seeLoranaBartels, ‘Criminal JusticeLawReformChallengesforthe

Future: It’s TimetoCurbAustralia’sPrisonAddiction’inRonLevyetal (eds), NewDirectionsforLaw

inAustralia:EssaysinContemporaryLawReform(ANUPress,2017)119.

10SeeegRick Sarre andLoranaBartels,‘TougherNationalParoleLawsWon’tEndtheViolence’,The

Conversation(online),7 June2017<https://theconversation.com/tougher-national-parole-laws-wont-end-

the-violence-78985>;Freibergetal, n 1;ArieFreibergandLoranaBartels,‘SerialKillers’FatesArein

Politicians’Hands.Here’sWhyThat’sa Worr y’, TheConversation (online), 20December2018

<https://theconversation.com/serial-killers-fates-are-in-politicians-hands-heres-why-thats-a-worry-

108825>.

11 Sarre andBartels,ibid.

12Bartels, n 3,376.

13Forexample,seeWalterSofronoff,Queensland:ParoleSystemReview,Final Report (2016).Allbut

twoofthe91recommendationsofthis Report wereadoptedbytheQueenslandGovernment:Queensland

Government,ResponsetoQueenslandParoleSystemReviewRecommendations(2017)

<https://parolereview.premiers.qld.gov.au/assets/government-response-to-qpsr-recommendations.pdf>.

Fordiscussiongenerally,seeFreibergetal, n 1.