Serial killers' fates are in politicians' hands. Here's why that's a worry

The community has little sympathy for mass murderers, serial killers or anyone convicted of a very serious crime against another person.

Presumably, this is why the Sentence Administration Amendment (Multiple Murders) Act 2018 passed through the WA state parliament earlier this month without any substantial opposition and was supported by victims’ families.

When proclaimed, the new legislation will allow WA’s attorney-general to instruct the Prisoners Review Board to suspend the assessment, consideration or reporting for parole (or a re-socialisation program) for certain mass murderers and serial killers for up to six years at a time.

Previously, these orders only lasted three years, which meant prisoners denied parole were entitled to have their cases reviewed every three years.

This change affects six prisoners.

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The attorney-general will also be able to make multiple instructions, which may mean he or she can order an offender will never be released. This decision is not subject to legal review except in exceptional circumstances.

The primary intention of this law is to reduce the trauma suffered by survivors and secondary victims of such crimes.

It fulfills an election commitment made in 2017 by the incoming McGowan Labor government.

Don’t these offenders deserve to die in jail?

Under WA law, a person convicted of murder and given a life sentence must be given a minimum term of 10 or 15 years, depending on the circumstances of the offence. Alternatively, the court may order the offender never be released on parole in certain circumstances. It’s easy to imagine that mass murderers and serial killers might warrant such a sentence.

However, where a life sentence for murder has been imposed and a minimum sentence served, it is the governor (usually acting on the advice of the attorney-general and the Prisoners Review Board) who has the ultimate power to parole a prisoner.

It appears that minimum sentences were set before the new legislation came into force for these six offenders, some for 30 years.

This arrangement is a hangover from when capital punishment was abolished in WA in 1984. Previously, the executive (that is, the political arm of government) made the final decision about whether the person would be executed. After abolition, the executive retained the power to decide which murderers would be released on parole. This system is unique to WA.

Who decides when someone’s released?

The difficulties with these changes to the law do not lie with the idea that mass murderers should never be released, but who decides if this should be the case.

Under the current law, it is the courts that can decide that “life means life”. This is an appropriate role for the judiciary. And it is appropriate for parliaments to make laws in relation to maximum sentences and parole generally.

However, it is not appropriate for politicians to make decisions about a specific person’s liberty, as they may be influenced by electoral or populist considerations rather than the merits of the individual case.

Read more: Political interventions have undermined the parole system's effectiveness and independence

In the 1980s, most jurisdictions removed or limited the powers of attorneys-general to prosecute cases and gave this power to independent directors of public prosecutions.

In the same way, establishing independent parole boards from the 1950s, often chaired by retired or serving judicial officers, was designed to separate decisions about a person’s liberty from political influence.

Political pressure

As the debates in the WA parliament reveal, the political temptations are great. Why a delay of six years and not nine or 12? Why only serial killers and mass murderers? And how many victims are required to qualify? Why not paedophiles or child murderers or murderers of one victim?

The answer lies in the broad notion of the separation of powers: politicians make the law, the judiciary applies it and the executive carries out their decisions.

However, governments increasingly have shown a reluctance to trust courts or parole boards as the final decision-makers on sentencing and release powers, and have eroded their authority.

The Victorian parliament has legislated to effectively deny mass murderer Julian Knight and police killers the possibility of release on parole and many jurisdictions have introduced “no body, no parole” laws.

Read more: No prospect of release: Kevin Crump and the human rights implications of life imprisonment

In WA, none of the six people subject to these new extended powers has been released after being considered by the Prisoners Review Board. This suggests the system was working effectively without the need for legislative reform.

It is understandable that victims should not be re-traumatised each time an offender is being considered for release, no matter how remote that possibility. And it is reasonable for the community to expect the most serious punishment for heinous crimes.

But it is also reasonable for citizens to expect that decisions about their liberty should be in the hands of impartial and independent bodies. This is what the “rule of law” should mean.