By Mitree Vongphakdi, Treasurer
Unprecedented. Unsustainable. Unacceptable.
Regardless of your personal views, from an objective standpoint, you should be concerned about the existing delays with the parole system in Queensland.
Parole Board Queensland (‘the Board’) is an independent statutory authority, which holds responsibility for decision-making about parole applications, amendments, suspensions and cancellations in Queensland. There is currently a significant backlog of work before the Board, causing unjustified financial cost to the State, and undeserved human cost to the community. Without intervention, it is likely this issue will grow larger, bringing further stress onto the overstretched criminal justice system, overworked community services, and the overwhelmed families of people in prison.
What is the law?
Broadly, parole matters considered by the Board can be broken into two groups:
Applications for parole; and
Parole suspensions.
When sentenced, a person will either be given a court-ordered parole release date or a parole eligibility date. If they are given a parole eligibility date, they will have to lodge an application to be considered for parole.
Under s 193 of the Corrective Services Act 2006 (Qld) (‘the CSA’), the Board is required to make a decision on a parole application within 120 days, and in certain circumstances, this timeframe can be pushed to 150 days.
When a person is on parole (and in some cases before they are released to parole), they can have their parole order suspended. under s 205 of the CSA, the Board may do this when they believe the person has:
Failed to comply with their parole order;
Poses a serious risk of harm to someone else;
Poses an unacceptable risk of committing an offence; or
Is preparing to leave Queensland without authority.
There is no timeframe for the Board to make a decision on a parole suspension. Interestingly, most people have their parole suspended solely due to failure to comply with their parole order (29% of all suspensions), or for posing an unacceptable risk of committing an offence (48%). In 2018/19, only 9 parole suspensions were issued solely for posing a risk of harm to someone else (0.25%).
What is the problem?
As of 24 March, it was estimated that there were 2100 undecided new parole applications before the Board. This number does not include any deferred or preliminarily refused applications. Nor does it include any parole suspension matters.
Over the past year, since the onset of the COVID pandemic, a steady backlog of applications has accrued before the Board. Whilst it is not possible to identify a specific cause, presumably, the large number of applications was brought on by people in prison concerned about an outbreak, compiled by the Board’s prioritisation of COVID-vulnerable people, and of course, the ever increasing prison population.
The backlog has reached such a point, where the Board now takes between 225 and 250 days to decide on an application. Given the lack of a legislative timeframe, there is no specific measure for delays on suspension matters. However, preliminary indications on this point are also of concern. In 2015/16, the average time spent in custody on a parole suspension was 3.5 months. Between 2017 and 2020, this has increased to 6 months.
These delays bring with them, well-justified concerns about both the financial cost and the human cost.
Considering the financial cost of parole application delays alone, the State is spending at least $3.9 million every month unnecessarily keeping people in prison. As Prisoners’ Legal Service explain,
Most applicants are waiting an extra 75 to 100 days for their parole application to be decided.
The cost to keep one person in prison is $285.67 per day.
The Board receives on average 328 new applications every month.
Approximately 60% of applications are granted at first consideration, and approximately 85% are granted overall.
Using these figures, the estimated cost would fall between approximately $4 million to $8 million per month. The expenses estimated are only for the applications received in a single month, they do not include any accrued backlog nor any suspension matters. It is not unreasonable to suggest that the actual cost to the State each month for all delays is in fact significantly higher.
Another important consideration is the human cost of these delays. The purpose of parole is to reintegrate a person from prison, into the community, to decrease the chance that they will reoffend. This supervised transition is highly beneficial to both the individual person, and the community more broadly as well. Any delay in releasing a suitable person on parole decreases the amount of time they can spend under supervision and with community supports. This decreases their chance of achieving stability, increasing the likelihood of their reoffending and return to custody. This alone is concerning, not to mention the increased risk of institutionalisation from extended incarceration, or the immeasurable cost to family and friends, as they are kept separated from their loved ones in prison.
Moreover, many parole applicants have jobs and housing lined up that are contingent on their release. The delay in considering their matter can lead to them losing these opportunities.
An additional concern is that the delays are a breach of human rights. Section 29 of the Human Rights Act 2019 (Qld) provides that all people have a “right to liberty and security” and that all people must not be subject “to arbitrary arrest or detention”. As Queensland Law Society has suggested,
“the substantial delays in considering the parole applications for all incarcerated people in Queensland constitutes a breakdown of the parole system of an extreme character.
…
Personal liberty at the back end of a sentence is equally as valuable as liberty at the front end of a sentence. Despite this, the resourcing, transparency and accountability for decisions at the front end of a sentence is much higher than when considering the liberty at stake in parole decisions.”
Currently, the only legal remedy available to people with a delayed parole application, is to file an application under s 22 of the Judicial Review Act 1992 (Qld), seeking an order from the court to compel the Board to make a decision. This solution may prove useful for the individual but it does not fix the widespread delays, and may make the situation worse for less capable parole applicants. When the court issues an order compelling the Board to a decision, the applicant will have their application moved forward in the queue, thereby pushing people without such an order down. This unfairly disadvantages people who lack the literacy to lodge a judicial review application and people who cannot afford the filing fees.
Utilising judicial review as a solution could also overwhelm the courts, and divert a larger proportion of the Board’s resources towards litigation work (as opposed to considering parole matters). In 2020, only 13 applications for judicial review were filed against the Board. In 2021 so far, 145 applications for judicial review have been filed.
What comes next?
It is understood that Queensland Treasury has engaged consulting-firm KPMG to conduct a review of the Parole Board’s workload, and that this review has already commenced. Assessing the operational efficiency of the Board is a good start, but it is not enough. These delays indicate significant deficiencies in the construction of parole-related legislation and procedure, and there is definitely a conversation to be had about systemic reform.
Of note is the recommendation by Mr Walter Sofronoff QC (as His Honour was then called), that another parole system review be conducted five years on from the 2016 review. This recommendation, and the major delays currently being faced, would suggest the parole system is ripe for another review.
Prisoners’ Legal Service, and Queensland Law Society, have publicly called on the government to provide emergency funding to the Board, to consult key stakeholders in any review, to consider broader legislative reform, and to provide adequate funding to legal services and other community supports.
Greens MP for Maiwar, Michael Berkman, has also called on the State government to provide temporary funding to alleviate the delays, and to consider broader reforms to the criminal justice system, such as more public housing and justice reinvestment.