Northern Territory Joins the “No Body, No Parole” States

Thursday 21 July 2016 @ 9.59 a.m. | Crime | Judiciary, Legal Profession & Procedure

On 13 July 2016, the Northern Territory Parole Amendment Act 2016 (No 28 of 2016) (the Amendment Act) was assented and is expected to come into operation in the near future. The enactment of this legislation places the Northern Territory (NT) in with a group of other State jurisdictions who have either enacted or are in the process of enacting similar legislation - these are as follows:

  • Western Australia, which currently has a Bill the Sentence Administration Amendment Bill 2016 before its Legislative Assembly as at 11 May 2016;
  • Victoria, which also currently has a Bill the Corrections Amendment (No Body, No Parole) Bill 2016 before its Legislative Council as at 24 February 2016; and
  • South Australia, which has enacted the Correctional Services (Parole) Amendment Act 2015 (No 17 of 2015) which commenced operation on 11 February 2016.

In essence, this type of legislation is intended to prevent people convicted of murder from being able to qualify for parole unless they provide police with the location of the body of their victim(s) (for our previous article on this topic see No Body, No Parole” Bills Introduced By Oppositions In Victoria and WA).

The Northern Territory Legislation

The moral and ethical justification for the legislation is expressed as follows in the NT Attorney General's second reading speech to the Bill for the Act:

"One of the final dignities a family can afford to a loved one who is a victim of a violent crime that ends their life is the celebration of that life, which includes the ability to lay their loved ones remains to rest. Conversely, the location of a body is a matter that an offender can hold over a victim’s family’s head for the sole purposes of extending their suffering. It is a clear sign of a lack of contrition and remorse."

Because of these considerations, it is argued, a Parole Board should be required to consider a convicted person's co-operation or lack of co-operation in locating a murder victims remains when making a decision to grant parole to an offender serving a murder sentence.

The legislation is described as looking for ways to focus on the interests of victims and families:

" . . . to put the interests of victims and victims’ families to the forefront of the Parole Board’s decision-making process, whilst also ensuring that prisoners are held to account for withholding vital information and refusing to accept full responsibility for their crimes."

Further, the point is made that parole is not to be viewed as a prisoner's right:

"Release on parole is a privilege not a right, and these amendments further solidify this policy."

The current NT Parole legislation was previously amended by the Sentencing (Crime of Murder) and Parole Reform Act 2004 (NT) to insert specific clauses relating to matters which the the Parole Board must take into consideration when assessing the suitability of a person for release. Section 3GB(3) of the NT Parole Act currently provides the following considerations:

  • the likely effect of the prisoner’s release on the victim’s family;
  • the likely effect of the prisoner’s release on the prisoner’s community (if the prisoner identifies as Aboriginal or a Torres Strait Islander); and
  • the protection of the community.

There is currently no requirement as to whether the prisoner has ". . . cooperated satisfactorily in the investigation of the offence to identify the local or last known location of the remains of the victim". The amendment Act amends the NT Parole Act to include provisions that:

". . . preclude the granting of parole for prisoners convicted of murder unless the Parole Board is satisfied the prisoner has cooperated satisfactorily in the investigation of the offence to identify the location or last known location of the remains of the victim."

As already mentioned above, the amendments made by the Amendment Act are, according to the second reading speech, modeled on the provisions that already exist in South Australia in sections 67(6) and (7) of the
Correctional Services Act 1982 (SA); the Private Members - Sentencing Administration Amendment Bill 2016 in WA and the Victorian Correction Amendment (No Body No Parole) Bill 2016.

The amendments are said to be "quite narrow" in application, relating only to prisoners undergoing a sentence for murder; a position said to be similar to that of the Western Australian proposed legislation and the legislation of South Australian and Victoria.

Further, it is pointed out that as the amendments only apply to post trial matters, namely, to parole hearings, ". . . being post trial and post sentence, they do not affect the prisoner’s right to silence at trial and do not interfere with the sentencing of the offender . . .". 

Comment and Reaction

Criticisms have highlighted perceived logical flaws in the legislation. The criticism highlights that it is correct to focus on the rights of victims and their families, however, the law cannot overlook the possibility that a person might be wrongly convicted. Furthermore, a person might not know the location of the remains. Stuart Tipple, the lawyer who defended Lindy Chamberlain, pointed out on a recent ABC News report that the ". . . laws do not take into account the possibility that some people convicted of a crime may be innocent". He is further quoted:

"It's draconian, and it's always been shown that being draconian like this doesn't work, . . . People under this new Act are not going to be given parole unless they show contrition, and so if you haven't done it and you're innocent, how can you properly show contrition? . . . The only thing you can be sorry about is being wrongly convicted. . . .The other thing of course is you're totally innocent so you're not going to know where the body is."

Apart from the Chamberlain Case, another high-profile NT case the Amendment Act affects is that of Bradley John Murdoch, who was convicted in 2005 of killing backpacker Peter Falconio in Alice Springs in 2001, and who, despite years in prison, has yet to disclose what he did with the remains of Mr Falconio. It might be argued that such a law would keep Murdoch in jail until he reveals the location of Mr Falconio's remains or it could just as easily be the case that Murdoch will never reveal such things as most likely he is mentally unstable or in some other physical way unable to recall and will be prevented regardless of duress, contrition or even remorse, from ever revealing the information. Further, it should be noted: Murdoch is in jail for 28 years non-parole and will not be able to seek parole until he is 74 - he still maintains he is innocent.

It will be interesting to see how this legislation actually operates in practice and if the outcome will be the one expected or if it proves to be, as described by Charles Darwin University law lecturer Ken Parish, part of:

". . . frequent national crazes for fashionable law and order measures which make no sense".

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