An Indigenous mother of four who died in custody in late 2021 had been eligible for parole for nearly a year. She remained incarcerated because she had no suitable place to live.

Heather Calgaret, a 30-year-old Yamatji, Noongar, Wongi and Pitjantjatjara woman, was just three months away from the end of her sentence when she was found unresponsive in her cell in the Dame Phyllis Frost Centre by her sister Suzzane. Calgaret was taken to Sunshine Hospital, where she died several days later, on November 29, 2021.

Heather Calgaret had been denied parole a month earlier, and her family are arguing that decision should be included in the coronial inquest into her death. “My sister was meant to be out on parole,” says Suzzane Calgaret. “We want answers.”

The Victorian Adult Parole Board rejects the family’s contention. And for Victorian Aboriginal Legal Service principal managing lawyer Sarah Schwartz, who is representing Calgaret’s family at the inquest, this typifies the secretive nature of the parole system in the state, which she says is exempt from the rules of natural justice and the Charter of Human Rights.

In Victoria, individuals do not have access to legal advice to apply for parole, or the opportunity to appear before the board to argue their case. They do not receive any reasons for the board’s subsequent decisions and have little avenue to challenge them.

“The parole system in Victoria is one of the most opaque parole systems in the country,” Schwartz tells The Saturday Paper.

Flat Out Inc. is a Victorian organisation that supports women in prison. Its executive officer, Karen Fletcher, likens the parole process to a black box. “Most of the time the people we’re supporting don’t even know what’s gone up to the board about them,” she tells The Saturday Paper. “It’s a huge problem for the people we support.”

Moreover, a series of reforms in recent years has contributed to a sharp drop in the number of people accessing parole in Victoria. The state’s prison population has ballooned as more people are being held in prison for longer and then released to the community with no support or supervision. The impact of these changes has been exacerbated by Victoria’s overhaul of bail laws in 2018, which led to more people being kept in prison on remand. These reforms, which made it harder for people accused of low-level offences to access bail, were described by Victorian Coroner Simon McGregor as an “unmitigated disaster” at the start of this year.

A major overhaul of the parole system began a decade ago, following a series of violent crimes committed by men on early release. The reforms were intended to restrict access to parole by placing the onus on people in prison to apply for it rather than this happening automatically. The new terms also required “suitable and stable accommodation” and the completion of programs in prison as a precondition of release and made the safety and protection of the community a key consideration of the board in its decision.

In the year before the reforms took effect, in 2012-13, just 17 per cent of parole applications were denied. The following year this figure jumped to close to 40 per cent and has remained around that level.

In 2022-23, 39 per cent of applications were denied, up from 35 per cent in the previous year. Of the more than 3200 people in prison eligible for parole only 40 per cent applied for it. And a lack of adequate housing was listed as a reason in almost two thirds of rejected cases, up by 20 per cent from the previous year.

In late October, the Victorian government announced plans for a further crackdown on parole, giving the Parole Board the power to declare certain people in prison unable to apply for release for up to 10 years after serving the non-parole period of their sentence. People serving a life sentence will also be restricted from reapplying for parole after their application has been rejected.

Though the changes to parole since 2012 have been aimed at preventing the early release of high-level offenders, critics say in practice they have significantly affected low-level, non-violent offenders, who are being kept in prison longer than they should, with no demonstrable benefit to community safety. Fletcher says the reforms have made it far harder for women and Indigenous people in particular to access parole, due mainly to inadequate housing, a lack of legal assistance and the unavailability of the necessary programs in prison.

“The situation is that people who have got a home can get out of prison on parole, but people who don’t, can’t,” Fletcher says. “There are huge problems in this housing crisis trying to find suitable addresses that the board will release people to.”

Moreover, at the end of August this year, the state government quietly extended a regulation making its parole boards exempt from its own Charter of Human Rights for another decade. These are the only entities that have been made exempt from the charter, meaning human rights do not have to be considered when making a parole decision. Nor do the parole boards have to follow the rules of natural justice, which require an opportunity to be heard, a lack of bias and for decisions to have a basis in reason.

“It means that we really don’t know the extent to which the parole board’s decisions are biased and breaching people’s human rights,” Schwartz says. “We’re all in the dark and we’re leaving these really important decisions to this really opaque body that comes to court and argues that their decisions shouldn’t be included in the coronial process.”

For former Victorian Sentencing Advisory Council chair Arie Freiberg these exemptions are “travesties”. “They say it’s because of the need for efficiency and that it would be far too hard to provide all of those protections,” Freiberg tells The Saturday Paper. “But I think it can be done – it’s done in other jurisdictions.”

The two other jurisdictions with human rights charters – Queensland and the ACT – have not exempted their parole processes.

A parliamentary inquiry into Victoria’s criminal justice system last year recommended a number of reforms to the parole process, including for individuals to be more involved with the decisions. Eighteen months later, the state government is yet to respond to this report despite being required to do so within six months.

As the Parole Board itself states, the purpose of parole is to provide eligible inmates with a “supervised, structured and supported release from prison”. With fewer people being released on parole, however, more are coming out of prison with no support, potentially making the community less safe, Fletcher says.

“When the board doesn’t want to take responsibility and the government doesn’t want to take responsibility and they’re releasing people at the end of their sentence, it just defeats that whole idea of a transition,” she says.

A spokesperson for the Victorian government said community safety was the “paramount consideration” of all parole decisions. “The longstanding charter exemption ensures parole decision-making processes and community safety are not impacted,” the spokesperson said.

The Victorian government has, however, moved to dismantle some elements of its bail reforms in the wake of a damning coronial inquiry – and a long-running family campaign – related to the death of Veronica Nelson in early 2020. Nelson also died in custody at the Dame Phyllis Frost Centre after being denied bail on shoplifting charges.

Under legislation introduced to parliament in August, people will no longer be held on remand for a crime that is unlikely to result in a prison sentence and the contentious “reverse onus” test for receiving bail will be scrapped for people convicted of low-level offences. The test was introduced in 2018 and requires the accused to prove why they should receive bail, rather than the prosecution. There were also plans to include reforms making it easier for children to receive bail, but the Labor government removed this from the legislation at the last moment despite having the numbers in parliament to pass it.

Even with these changes, marginalised and vulnerable people will continue to be punished and kept in prison longer than needed, Fletcher says.

“When the media reports that somebody has committed an offence while on bail or parole, the knee-jerk reaction of politicians of pretty much every stripe is to cut back on parole and bail,” Fletcher says. “That’s basically a political strategy to respond to popular misconceptions, rather than to explain why bail and parole is needed.”

For Arie Freiberg, this demonstrates the frailty of the criminal justice system. “The problem is that every time there is a disaster … it shatters faith in parole, as it does in bail,” he says.

“There’s a very fragile trust in criminal justice. It takes a while to build up trust and it tends to be shattered very quickly.”

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