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

SET UP TO FAIL? EXAMINING AUSTRALIAN PAROLE

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 argue provides 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 often subject to

disproportionate responses and there is no legislative obligation for jurisdictions to

integrate support services for parolees.

I INTRODUCTION

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’.1 Any 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 20122 and, more recently, the killing of Kai Ho by parolee

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

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

managing those on parole.

* Graduate-at-Law, HWL Ebsworth Lawyers

** Professor, Australian National University; Adjunct Professor, University of Tasmania.

*** Senior Lecturer, Australian National University

1 Arie Freiberg et al, ‘Parole, P olitics and Penal P olicy’ (2018) 18 Queensland University of Technology

Law Review 191.

2 ABC News Online, ‘Man Charged with Rape, Murder of Jill Meagher’, ABC N ews (online), 28

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

meagher/4284826>. For discussion, see Lorana Bartels, ‘Parole and Parol e Authorities in Australia: A

System in Crisis?’ (2013) 37 Criminal Law Journal 357.

3 Ben Doherty, ‘Yackub Khayre: Melbourne siege gunman’s history of violent crime and drugs’, The

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

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

108 University 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.4 This constituted a 4 per cent increase over the previous year,5 while 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 Australia in December 2018, the highest

number on record. 7 Meanwhile, 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 current tendency across Australia to reduce access to parole

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

crime’ campaign,11 which 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,13 was 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

neither effective nor responsive to the underlying causes of criminal behaviour.

Both the community generally and offenders are suffering as a result.

4 Australian Bureau of Statistics (‘ABS’), ‘Corrective Services, Australia, December Quarter 2018’ (Cat

No 4512.0, 2018).

5 Ibid.

6 Ibid.

7 Ibid.

8 Productivity Commission, Report on Government Services 2018 (2018) Table CA.4. Return due to the

cancellation or revocation of parole orders is included in th is measurement.

9 For a thorough examination, see Lorana Bartels, ‘Criminal Justice Law Reform Challenges for the

Future: It’s Time to Curb Australia’s P rison Addiction’ in Ron Levy et al (eds), New Directions for Law

in Australia: Essays in Contemporary Law Reform (ANU Press, 2017) 119.

10 See eg Rick Sarre and Lorana Bartels, ‘Tougher National Parole Laws Won’t End the Violence’, The

Conversation (online), 7 June 2017 <https://theconversation.com/tougher-national-parole-laws-wont-end-

the-violence-78985>; Freiberg et al, n 1; Ar ie Freiberg and Lorana Bartels, ‘Serial Killers’ Fates Are in

Politicians’ Hands. Here’s Why That’s a Worr y’, The Conversation (online), 20 December 2018

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

108825>.

11 Sarre and Bartels, ibid.

12 Bartels, n 3, 376.

13 For example, see Walter Sofronoff, Queensland: Parol e System Revi ew, Final Report (2016). All but

two of the 91 recommendations of this Report were adopted by the Queensland Government: Queensland

Government, Response to Queensland P arole Syste m Review Recommendations (201 7)

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

For discussion generally, see Freiberg et al, n 1.