Protecting Queenslanders from Dangerous Prisoners and Strengthening Victims Rights Act
Dear Committee Secretary,
Hereunder is the submission by the Qld Coucil for Civil Liberties in relation to the above Bill.
Consultation
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The Explanatory Notes say:
“ The Government commissioned Mr. Peter Hastie KC to undertake an independent Review into the Board.The Review spoke to stakeholders and sought submissions from victims of crime , members of community organisations and other persons with respect to the operation of the Board.This consultation informed his report and recommendations about how to ensure the Board operates effectively to support community safety and the rights of victims. This Bill delivers on the Government response to the Review recommendations.
The President of the Parole Board and the Office of the Victims’ Commissioner have been consulted during the drafting of the Bill and further consultation on the amendments will be undertaken as part of the parliamentary committee process.”(See Explanatory Notes p20-21).
What the Explanatory Notes do not say is that Mr. Hastie was not asked in his Terms of Reference to examine the restricted prisoner scheme nor was there the slightest suggestion in those Terms that the restricted prisoner scheme was to be expanded in the dramatic manner it has been in the Bill.( See Review of Parole Board Queensland Final Report 23/9/25 by Peter Hastie KC at p130-132).
The only issues addressed by Mr. Hastie re the restricted prisoner regime were the following recommendations;
Recommendation 22: that the Act be amended to require the chief executive no less than 360 days from the parole eligibility date of a restricted prisoner……… to give the president a report about the prisoner………( See Hastie Report at p85).
Recommendation 23: that the Act be amended to require the Parole Board in giving its Annual Report to state the time taken between the making of a report by the chief executive to the president on a restricted prisoner and the making of a decision by the president whether to make a restricted prisoner declaration ( ibid p85-86).
Therefore this Committee needs to be fully aware that the Hastie Review is no authority at all for any claim that there has been consultation via the Hastie Review process in relation to the vastly expanded restricted prisoner regime.
Nor was there any consultation in the Hastie review about the other contentious parts of this legislation namely the denial of natural justice to a prisoner of certain information contained in the chief executive’s report to the parole board or the changes to the discrimination regime concerning prisoner treatment. ( Note: For consideration of both of these topics see below) .
Therefore if there was no consultation in relation to the topics in this submission during the compilation of the Hastie Report the above extract from the Consultation heading in the Explanatory Notes reveals that the only entities consulted during the drafting of the Bill was the Parole Board and the Victims Commissioner.
This continues this Government’s apparent deliberate policy of not following the proper consultation processes as outlined in the Cabinet Handbook which states in Ch 6 that “ consultation is a fundamental and mandatory part of the development of all Cabinet submissions” prior to a Bill being introduced into Parliament.
The necessity for proper and wide consultation processes not just with Government departments was highlighted in the landmark Fitzgerald Report, namely:
“ Laws and policies often address highly complex matters. Formulating them requires expertise. No Government will have all the ideas, , expertise and insight on any particular topic.As well, Governments are not the only bodies which have these attributes. Whatever the expertise required, the solution to any problem is something about which people can and do reasonably differ. The best result will be produced by rational debate by those with opposing views. The community is entitled to such a result. This is particularly so when the problem to be tackled affects the whole community or significant parts of it as is the case ……with law enforcement. The community is entitled to be fully and properly informed about what laws and policies are needed, their objective , cost, purpose and effectiveness. The community must also be told the consequences of applying the laws. On such fundamental matters , whatever the expertise or inspiration of those in Government, they have a responsibility to invite and consider the counsel of those with differing views.” ( See Fitzgerald Report p123).
These important observations as to how consultation is to be carried out are reflected in the various provisions of the Cabinet Handbook. They have not been followed at all here from what can be derived from the Explanatory Notes or the Minister’s Introduction Speech. On the information available lawyers experienced in the topics submitted on herein appear not to have been consulted. This includes the Queensland Law Society and the Qld Bar Association. If there had been consultation with these bodies it would be expected to be referred to in the Consultation heading of the Explanatory Notes. Certainly the QCCL have not been consulted
The referral of this Bill to this Committee is not a substitute for the Government’s own pre- legislative consultation obligations. The two processes occur at different stages and several different purposes.
The Cabinet Handbook requires consultation to commence early in policy development so that affected stakeholders views , including contrary views, can inform the proposal ultimately put to Cabinet. By the time a Bill reaches a parliamentary committee Cabinet has approved the policy and the Bill. Except for possible minor tweaks at the margins the Bill is set in concrete by the time it reaches the Committee.
Treating the Committee process as a substitute for earlier consultation reverses that sequence. It asks affected organisations to comment after the executive decision has been made rather than allowing their expertise and experience to inform that decision. It also deprives Cabinet itself of the benefit of those views.
The Committee is , therefore, respectfully requested to make a finding that the Cabinet Handbook consultation procedures have not been followed in respect of this Bill.
The original Restricted Prisoner Scheme
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This scheme was introduced in September 2021 under the previous Labor Government. The impetus was the notorious and awful case where Barrie Watts was convicted of the murder of 12 year old Sian Kingi in 1987. Having been sentenced to life imprisonment Watts applied for parole in 2020 which resulted in a petition seeking tougher parole laws attracting 72,000 signatures.
When introducing the new restricted regime the then Corrective Services Minister described the principal purpose of the new law as protecting victims families from repeated trauma caused by parole applications. This is similar to the current principal justification for the vast widening of the scheme as outlined in the current Bill.
Variously, the Qld Law Society,the Qld Human Rights Commission , Sisters Inside and the Bar Association of Qld opposed the introduction of the restricted prisoner scheme in 2021 on the basis that Qld already possessed substantial mechanisms for dealing with dangerous murderers, namely:
[1]. mandatory life imprisonment
[2]. lengthy statutory minimum non-parole periods
[3]. the sentencing court’s ability in appropriate cases to impose a longer minimum period.
[4]. the Parole Board’s existing power to refuse release where the prisoner remained an unacceptable risk.
These objections remain as relevant to the very considerable expansion of the restricted prisoner regime as proposed in the current Bill.
The then Legal Affairs and Safety Committee noted in its Report that the declaration of a prisoner as a restricted prisoner could be made by a court rather than the President of the Parole Board. The Committee noted that non-parole periods are commonly stipulated when sentence is imposed and that the restricted prisoner declaration could be made by the Supreme Court Judge at sentencing. The then Labor government did not adopt the Committee’s recommendation.
The QCCL supports this Supreme Court model for the expansion of the restricted prisoner model whose features would be:
[1] the prosecution makes its case at sentencing.
[2] the prisoner has legal representation.
[3].evidence and submissions are heard.
[4] the independent Supreme Court decides at sentence whether an unusually long restriction on parole is justified.
Such a court based model ensures that sentences for very serious murder cases are set by a Court thus minimising the opportunity for campaign pressures to be mounted against the Parole Board by well organised victims groups long after an independent Court has set the sentence parameters.
Therefore, the central submission of the QCCL is that the restricted prisoner scheme as it currently exists should not be expanded as proposed in the current Bill and that the existing scheme should be transferred to a Supreme Court model as recommended by the previous Committee in 2021.
The Expanded Regime under the current Bill
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The Minister in her introduction speech specifically noted that the Baden-Clay case was a significant reason for the great expansion of the restricted prisoner regime. [See Qld Hansard 15/9/26 at p 2762]
The Minister also noted in her Introduction Speech that”……today 71 prisoners are captured by the restricted prisoner framework. Under our reforms 334 life sentenced prisoners will be captured.” ( ibid p2763).
The new scheme is summed up in the Explanatory Notes as follows:
“ The Bill …………significantly expands the cohort of prisoners to whom the framework applies to all prisoners serving a sentence of life imprisonment. The Bill will also introduce an initial mandatory restricted prisoner declaration for a minimum period of 5 years for all restricted prisoners to reduce the re-traumatisation and uncertainty experienced by victims and their families when a prisoner serving a life sentence becomes eligible for parole. The president or deputy president may determine a longer period for the initial declaration up to a maximum of ten years.Subsequent restricted prisoner declarations will also be available and applicable up to a maximum of 10 years, reiterating that parole is a privilege and ‘ life should mean life’ “ ( See Explanatory Notes p2).
Again, the shadow of the Baden-Clay case looms as a major motivating factor for the new regime which has no precent anywhere else in Australia and, as indicated above, has not been the subject of consultation with the legal profession so that the complexities and consequences of this unprecedented regime could be taken into account when the Bill and its underlying philosophy and reasoning was being considered by Cabinet.
The Sentencing Judge’s comments in Baden-Clay are acknowledged and in no way does this submission seek to diminish what the sentencing judge said, namely:
“ …… he spoke of the grave impact …… on her family. ………… critically he warned that whatever Baden-Clay might one day say in an application for parole would need to be treated with considerable scepticism.”( See Minister’s Introduction Speech15/9/26 at p2761).
Why should Baden-Clay’s case be equated with the incredibly worse facts of Barrie Watts. While acknowledging the deep trauma suffered by Baden-Clays family they were fully taken into account by the sentencing judge. Therefore on what proper or logical basis should Baden-Clay be subject to another 10 years or more jail. Is it because his family has been able to mount a campaign to , in effect, hugely alter the sentence structure decided by the neutral sentencing judge, as is proposed in this Bill.
Baden- Clay is cited in this submission by the QCCL as to why the restricted sentencing regime’s extension is illogical and puts an offender’s release date as being subject not to the considered sentence structure imposed by a Supreme Court judge but is recalibrated because of a campaign by his victims to have the effect of his Supreme Court sentence rendered irrelevant.
Baden-Clay, for all of his unattractiveness and unpopularity ,is the best illustration of how the proposed extended restricted prisoner regime will work in practice, namely the sentence structure decided with considered deliberation by a Supreme Court Court judge in a future Baden-Clay type case will be easily altered under the new scheme.
And it is also relevant to note that the Explanatory Notes observe that “ Only Western Australia and Victoria have restricted prisoner provisions.” ( See Explanatory Notes p 21). But neither the Explanatory Notes nor the Minister’s Introduction Speech engage in any comparative review of how the restricted prisoner regimes in these jurisdictions work compared to the expanded Qld new regime which ,as observed a number of times herein ,has not been the subject of consultation with the QLS or the Bar Association.
It must also be noted that under the new regime , again using Baden-Clay as an example “ The Board will be prohibited from disclosing information in the report that the chief executive identifies as personal or otherwise sensitive to the prisoner. The principles of natural justice will not apply in relation to the non- disclosure of personal or sensitive information.” ( See Explanatory Notes p5).
This is an extraordinary provision. It is the Chief Executive of Corrective Services ( in reality the report writer within Qld Corrective Services ) not the decision maker, namely theParole Board ,who decides what Baden -Clay or another Baden - Clay type profile murderer is allowed to see as to what is contained in the report that the Board will consider in deciding to list a person as a restricted prisoner.
This is another reason why a sentence structure for a restricted prisonershould be decided by the sentencing court.
The Committee needs to examine the principal rationale for the widely expanded restricted prisoner regime.
In the Minister’s Introduction Speech the following appears:
“ if a crime us so serious that the Court sentenced the prisoner to life imprisonment then our parole laws should recognise the. gravity of that sentence. Life should mean life and this Bill does that by expanding the restricted prisoner framework to every prisoner serving a life sentence, every single one.” ( See Minister’s Introduction speech 15/9/26 at p2762 Qld Hansard).
The problem with this observation of the Minister is that it doesn’t take into account that a Qld Supreme Court must impose a life sentence for murder irrespective of the role of the accused . In most other Australian States and Territories there is no mandatory life sentence for murder. The sentence is a fixed term of years with the head sentence, particularly, fixed by reference to whether the accused actually committed the murder or is being sentenced under the law of accessorial liability.
Applicability of Discrimination Law to Prisoner Jail Management.
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The Minister’s Introduction Speech contains the following observation:
“ The Bill also makes clear that particular provisions of the Human Rights Act will not apply to the exercise of certain powers under the Corrective Services Act. Our correctional services officers …………should not have to undertake an additional human rights assessment in the interests of an individual prisoner before taking otherwise lawful action necessary to perform those ( their ) responsibilities.” ( See minister Introduction speech 15/9/26 at Qld Hansard p2766]
Further in dealing with prisoners released under the Dangerous Prisoner legislation the Minister said, following on immediately from the quote extracted above:
“ This is particularly important in respect of persons supervised and managed under The Dangerous Prisoners [Sexual Offenders] Act, DPSOA offenders. These are offenders who have completed their sentence and cannot continue to be held in prison but who have been found by a court to pose an ongoing risk of committing a serious sexual offence if released into the community without appropriate supervision. In managing these offenders QCS must be empowered to act protectively and with no tolerance for risk to community safety. The individual rights of an individual DPSOA offender should not prevent QCS from taking otherwise lawful action necessary to maintain the safe and effective operation of contingency accomodation precincts, enforce the conditions applying to offenders , or protect QCS officers, other officers or persons in the broader community from harm. The safe and effective management of prisoners should not be made harder because of an individual prisoner. The security and good order of our correctional centres, DPSOA precincts and the community should not be compromised because of an individual prisoner. The officers we entrust to keep dangerous prisoners securely behind bars should be able to exercise their lawful powers with one overriding priority -keeping Queenslanders safe” ( See Minister Introduction Speech15/9/26 at p2766-2767),
There is further elaboration of this topic in the Statement of Compatibility, namely:
“ …… new subparagraphs under sections 319(G) and 319H ( 2) of the CSA will require QCAT to explicitly take the need to protect the safety or wellbeing of the community or a victim of crime , and the need to protect national security into account when determining the reasonableness of the treatment or proposed treatment of an offender…… the amendments are unlikely to limit any rights……” (See Statement of Compatibility p12-13).
This aspect of the Bill was not considered in the Hastie Report and, as indicated above, has not been the subject of consultation with legal groups including the QCCL.
If, as asserted in the extract immediately above, the amendments are “Unlikely to limit any rights,” the Department needs to indicate in its Briefing to the Committee why the new subparagraphs are therefore needed.
Because there has been no consultation on this aspect of the matter the genesis of the new subparagraphs including any internal Department memos or position papers or the like need to be produced to the Committee so that the claim that the amendments are unlikely to affect any rights can be closely scrutinised by the Committee.
The question needs to be answered by the Department why the changes are needed at all, including whether there have been any QCAT cases that can be cited in support of the changes.
Further , if as the Explanatory Notes assert in the above extract that “ the Bill also makes clear that particular provisions of the Human Rights Act will not apply to the exercise of certain powers under the Corrective Services Act,” the Department needs to explain to theCommittee how this assertion can logically sit alongside the further comment in the Explanatory Notes that the amendments “ are unlikely to limit any rights.”
The management of prisoners under DPSOA Orders especially in the Wacol Precinct has the result that people who are no longer serving a term of imprisonment but are subject to often stringent conditions under such Orders need to be able to have access to the rights protective provisions of the Human Rights Act in order to seek a remedy for an excess or arbitrary use of powers by Corrective Services officers against them.
Conclusion
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As indicated above, the principal reason given for the initial restricted prisoner scheme when it was introduced in 2021 was to protect victims families from repeated trauma caused by parole applications.
In the Minister’s Introduction Speech for the current Bill a similar justification was put forward,namely:
“ putting victims first means recognising that the parole process itself can cause harm. Every new parole application can cause a victim or a grieving family back into the trauma of the original offending- another notification, another submission , another period spent wondering whether the person who changed their life forever might soon be released……… victims should not be unnecessarily dragged back through the parole process again and again without the impact on them ever forming part of that decision.” (See Hansard 15/9/26 p2766)
It is readily acknowledged that a victim taking part voluntarily in the parole submission process can have real negative emotional consequences.But it is grossly overstating the position to assert that thus happens “ again and again” with murder and murder related offenders .It is equally wrong to assert that the impact on victims is not taken into account.
By the time a murder offender first applies for parole they have served in excess of fifteen years and often longer before they can make their first parole application. How can this logically or properly be described as an application process that happens “ again and again. “
The real agenda by the Government and the Minister is tellingly revealed in the following extract from the Minister’s Introduction Speech, namely :
[1] “ under Labor’s current law life did not mean life for families like Allison Bade-Clay’s. ( Hansard p2761
[2]. When the restricted framework was introduced ( under Labor in 2021) Allison’s family was left outside it. Gerard Baden- Clay becomes eligible for parole next year. This Bill fixes that failure.” ( Ibid p2762).
[3]. If a crime is so serious that the court sentenced the offender to life imprisonment then our parole laws should recognise the gravity of that sentence. life should mean life. ( Hansard p2762).
Therefore, it should be recognised that this Bill very radically alters the sentencing regime for murder by moving the sentence process away from the Supreme Court and placing it in the hands of the Executive namely the Parole Board.
The false claim that victims have to face parole applications “ again and again” is used to justify these radical changes and the Baden-Clay case is exploited as the case example to justify this wholesale change to murder sentencing.
This Bill could properly be renamed as “ The Keep Baden-Clay in Jail and Undermine the Supreme Court Bill.”
This new scheme should be rejected because it renders the Sentencing role of the Supreme Court effectively meaningless.
The request that the Committee find the Consultation process breaches the Cabinet Handbook, and otherwise , is repeated.
Consent is given for the public release of this submission and confirmation is requested of the Committee Secretariat of receipt of the submission.
Thank You,
Terry O’ Gorman, Vice President Qld Council for Civil Liberties.