AMENDMENTS
COMMENCING
4 OCTOBER 2012
AMENDMENTS TO
COMMONWEALTH
PAROLE—
INFORMATION
CIRCULAR
Commonwealth Attorney-General’s Department—
Federal Offenders Unit
Contents
General Background .............................................................................................................................1
Who are federal offenders ............................................................................................................ 1
If a federal offender is already on parole do these amendments apply? .....................................1
What if a federal offender is currently serving a sentence of imprisonment for a federal
offence, will the amendments apply?............................................................................................ 1
Discretionary release of federal offenders onto parole ........................................................................ 2
Making of the parole order—new section 19AL .............................................................................2
Who makes the decision as to whether to release a federal offender on parole? ........................2
Will a federal offender be required to apply for parole? .............................................................2
What reports will be provided to the decision maker?.................................................................2
When will pre-release reports need to be provided by?...............................................................2
Will a federal offender be able to make submissions? .................................................................2
When should a federal offender make a submission? .................................................................. 3
Will the decision maker be required to give notice to a federal offender if they decide to refuse
to make a parole order? ...............................................................................................................3
If the decision maker refuses to make a parole order at the end of a non-parole period—what
happens next? ...............................................................................................................................3
Will the decision maker reconsider his or her decision? .............................................................3
In what circumstances would parole be refused? ........................................................................ 3
What happens to federal parole when a federal offender is a joint offender and still required to
serve a State or Territory sentence? ............................................................................................ 4
What of federal offenders who are joint offenders but will remain in custody on a State or
Territory sentence for a portion of their federal parole period? .................................................5
Release on parole—new section 19AM ...........................................................................................5
Why is it necessary to have the 30 days early release option? ....................................................6
What if a federal offender is a joint offender imprisoned for a State or Territory offence? Can
they be released on federal parole? .............................................................................................6
What if a federal offender does not sign their parole order?.......................................................6
What of State or Territory laws that allow for a prisoner to be released up to 24 hours before
the end of their non-parole period? .............................................................................................6
Length of Parole Period........................................................................................................................ 7
Release on parole—section 19AMA—start and end of parole period .............................................7
Length of Licence Period .....................................................................................................................9
Length of Supervision Period .............................................................................................................12
Will all federal offender’s supervision period extend to the end of their non-parole period? .. 12
Can the length of a federal offender’s supervision period be changed at a later time after the
parole order is made? ................................................................................................................ 12
GENERAL BACKGROUND
The Crimes Legislation Amendment (Power and Offences) Act 2012 (the Act) was given Royal
Assent on 4 April 2012
Schedule 7 of the Act contained amendments in relation to the release and parole of federal
offenders under Part IB of the Crimes Act 1914 (Cth). The amendments come into force on
4 October 2012. Accordingly, on that date:
• the release on parole of all federal offenders serving sentences of imprisonment in relation to
which a non-parole period has been set will be discretionary, in the same way as the current
release on parole of federal offenders serving sentences of imprisonment of 10 years or more,
and
• the legislatively imposed five year maximum parole period and the three year maximum term
for parole supervision will be abolished. Instead, the parole period would end on the day the
offender’s sentence expires. The parole decision-maker will be able to impose a supervision
period that is limited only by the length of the parole period.
Who are federal offenders
Federal offenders are persons who are convicted of, and sentenced for, offences against
Commonwealth laws. Examples of such offences are social security offences, frauds on the
Commonwealth and offences relating to the importation of narcotic drugs into Australia.
The parole amendments only apply to federal offenders.
If a federal offender is already on parole do these amendments apply?
No. The parole amendments only apply to federal offenders for whom a parole order has not been
made and are not on parole at the commencement of the amendments on 4 October 2012.
Federal offenders who have been released on parole prior to 4 October 2012 will not be subject to
the new arrangements—that is, existing federal parolees (other than those serving a life sentence)
will still have a maximum parole period of five years and a maximum parole supervision period of
three years. This would be set out on their parole orders.
What if a federal offender is currently serving a sentence of imprisonment for a federal offence,
will the amendments apply?
Yes. The amendments apply to all federal offenders who meet both of the following criteria:
(i) the person has been sentenced by the court with a non-parole period before or after the
commencement of the amendments, and
(ii) a parole order has not been made and the federal offender has not been released on parole.
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DISCRETIONARY RELEASE OF FEDERAL OFFENDERS ONTO PAROLE
NOTE: Discretionary parole only applies to federal offenders for whom a parole order is to be
made on or after 4 October 2012.
Making of the parole order—new section 19AL
The Act sets out a new section 19AL in the Crimes Act, which will provide that all parole decisions
are discretionary.
That is, the Attorney-General, will be required, before the end of a federal offender’s non-parole
period, to either make, or refuse to make, a parole order directing that the person be released from
prison on parole.
Who makes the decision as to whether to release a federal offender on parole?
The Act states that the Attorney-General is required to make a parole order. In accordance with
ministerial portfolio responsibilities, the Minister for Home Affairs and Justice is the responsible
Minister for federal offenders. Accordingly, the Minister for Home Affairs and Justice will be a
decision maker under section 19AL. In addition, a delegate from the Attorney-General’s
Department will also be a decision maker under section 19AL. However, the Attorney-General
retains the power to make parole decisions and orders, and may do so in appropriate cases.
Will a federal offender be required to apply for parole?
No. As is currently the case, a federal offender does not need to apply for parole.
What reports will be provided to the decision maker?
As is the current practice, to assist the decision maker to determine whether a federal offender
should be released on parole, State and Territory corrective services agencies will provide
pre-release reports on a federal offender’s behaviour in prison.
These pre-release reports will contain a recommendation by the State and Territory corrective
service agency as to whether it considers that a federal offender is suitable for release on parole.
This recommendation will be taken into account by the decision maker.
When will pre-release reports need to be provided by?
The Department will need corrective service agencies to provide the reports at least four months
prior to the end of a federal offender’s non-parole period.
Will a federal offender be able to make submissions?
Yes. Federal offenders may make a submission. If the Commonwealth Attorney-General’s
Department receives a submission, the decision maker is required to take the submission into
account when deciding whether to release a federal offender on parole.
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When should a federal offender make a submission?
A federal offender should make a submission at least four months before the end of their
non-parole period. Submissions should be mailed to:
Principal Legal Officer
Federal Offenders Unit
Commonwealth Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
Or alternatively emailed to: [email protected].
Will the decision maker be required to give notice to a federal offender if they decide to refuse to
make a parole order?
Although the legislation will not provide specifically for this requirement, as is currently the case,
common law procedural fairness requirements will be respected in the parole decision process.
If the decision maker is considering refusing release on parole, the prisoner will be informed of this,
including the reasons why such a decision is being considered, and given an opportunity to make a
submission. Any submission made by the prisoner will be taken into account by the AttorneyGeneral in deciding whether to release the offender on parole. This is a common law requirement
to which decision makers are subject, and accordingly this issue is not specifically dealt with in
either the current legislation or the amendments.
If the decision maker refuses to make a parole order at the end of a non-parole period—what
happens next?
The decision maker must give written notice to the federal offender within 14 days after the refusal
that:
•
informs the offender of the refusal
•
includes a statement of reasons for the refusal, and
•
explains that the decision maker must reconsider making a parole order for the offender
and either make, or refuse to make, such an order within 12 months after the refusal.
Will the decision maker reconsider his or her decision?
The decision maker will be required to reconsider a federal offender’s release on parole within 12
months of refusing to make a parole order. The decision maker can reconsider his or her decision
earlier than 12 months since the previous decision.
The decision maker then must reconsider the federal offender’s release on parole within 12 months
of each refusal.
In what circumstances would parole be refused?
In deciding whether to release a person on parole, the decision maker may consider any relevant
matter, including:
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•
the need to protect the safety of the community
•
whether releasing the offender on parole is likely to assist the offender to adjust to lawful
community life
•
the likelihood that the offender will comply with the conditions of the parole order
•
the offender’s conduct while serving his or her sentence
•
the nature and circumstances of the offence to which the offender’s sentence relates
•
any relevant comments made by the sentencing court
•
the offender’s criminal history
•
any report or information in relation to the granting of parole that has been provided by the
relevant State or Territory corrective services agency, and
•
the behaviour of the prisoner when subject to any previous parole order.
For example, the decision maker may refuse a person’s parole if he or she receives a report from the
State or Territory corrective services agency advising that a prisoner has displayed consistently poor
custodial behaviour and has refused to participate in rehabilitation programs.
What happens to federal parole when a federal offender is a joint offender and still required to
serve a State or Territory sentence?
The current section 19AM of the Crimes Act will essentially be replicated in the new subsection
19AL(4) to ensure that federal offenders are not released on federal parole until their release is
authorised under the State or Territory Sentences.
The new subsection 19AL(4) of the Crimes Act, will provide that the decision maker is not
required to make a parole order before the end of a person’s non-parole period in the following
circumstances:
(i) Offender is not serving a federal life sentence—if the parole period would end while the person
would still be imprisoned
It would not be appropriate for a person to be released on federal parole if they are still subject to a
State or Territory sentence of imprisonment and it would be futile for the Attorney-General to make
a parole order if that order would expire while the person is still in custody for other offences.
(ii) Offender is serving a federal life sentence—until the release of the person from prison for the
State or Territory offence
Under this provision the decision maker is not required to make, or refuse to make, a parole order
for the offender, until the release of the person from prison on the State and Territory offence.
However, the decision maker may make a decision on the offender’s release on parole at any time
in the three months before the person’s expected release on the State or Territory sentence. This
will allow the decision maker to make a parole order authorising the offender’s release on parole on
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the day that the offender is released on the State or Territory sentence, and that this decision is not
delayed until the date of the person’s release on the State or Territory sentence is reached. If the
person is eligible and suitable for release on parole, there is no purpose to be served by making him
or her spend additional time in prison.
(iii) Offender is serving a State or Territory life sentence for which a non-parole period has not been
set
This provision will prevent the decision maker from making or refusing to make a parole order at
the end of such a federal offender’s non-parole period, as a person subject to a State or Territory life
sentence for which a non-parole period has not been fixed will not become eligible for release from
custody.
What of federal offenders who are joint offenders but will remain in custody on a State or
Territory sentence for a portion of their federal parole period?
If a federal offender is a joint offender and their federal parole period will extend past the end of the
time the person is imprisoned for the State or Territory offence (that is, none of three options above
apply) then the decision maker must either make or refuse to make a parole order. However,
even if a parole order is made the federal offender cannot be released on federal parole until he
or she is released from prison on the State or Territory offence (see new subsection 19AM(2)
below).
Accordingly, in most circumstances a parole order will be made before the end of the federal
offender’s non-parole period even though they are still imprisoned under a State or Territory
offence and cannot be released on federal parole. Once the parole order is signed by the federal
offender the mandatory condition to be of good behaviour and not violate any law will come into
effect. Any additional conditions that may be relevant for the federal offender will not come into
effect until the person is released from custody on the State or Territory sentence.
It is important that this mandatory condition comes into effect before the person’s release.
Release on parole—new section 19AM
The new section 19AM will set out when a federal offender is to be released from prison under a
parole order. Different arrangements will apply according to whether the person is being released
on a parole order made:
(i) before the end of his or her non-parole period, or
(ii)after the end of the non-parole period (a parole order might be made after the end of the
non-parole period if the Attorney-General had initially decided to not release the person on
parole and then makes a further decision to grant parole).
(i) If a parole order is made before the end of the non-parole period a federal offender must be
released at the earlier of:
•
at the end of their non-parole period, or
• a day not earlier than 30 days before the end of the non-parole period that is specified in the
parole order.
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The second alternative allows for allows for the release of a federal offender up to 30 days before
the end of their non-parole period. This provision currently exists under current section 19AL of
the Crimes Act.
Why is it necessary to have the 30 days early release option?
It is sometimes appropriate to release an offender shortly before the end of their non-parole period,
for example where a specific event is scheduled to occur in the 30 days before the expiry of the
prisoner’s non-parole period, such as the start of a course that is important to the offender’s
rehabilitation. The ability to release an offender up to 30 days before the expiry of their non-parole
period is also often used for offenders whose non-parole period expires in the period between
Christmas and New Year. Such prisoners are often released prior to Christmas to enable the
relevant parole service to provide assistance before the Christmas shutdown period and to allow
offenders the opportunity to spend Christmas with their families.
(ii) If a parole order is made after the end of the non-parole period a federal offender must be
released at the later of:
• the day after the parole order is made
• a day specified in the parole order, which must not be later than 30 days after the order is
made.
The second alternative is required to ensure that arrangements for the federal offender’s release are
finalised. In most cases, the person will be released the day after the parole order is made.
What if a federal offender is a joint offender imprisoned for a State or Territory offence? Can
they be released on federal parole?
A federal offender who is also serving imprisonment for a State or Territory offence cannot be
released on federal parole while he or she is in custody for the State or Territory offence. In
accordance with new subsection 19AM(2), a federal offender can only be released from prison on
federal parole on the same day he or she is released from prison for the State or Territory offence.
However, note that a federal offender must accept the conditions of their parole order before they
can be released (see next question below).
What if a federal offender does not sign their parole order?
In accordance with new provision 19AM(3), a federal offender must not be released from prison on
parole until he or she certifies they accept the conditions of the parole order by signing the parole
order or a copy of the parole order.
What of State or Territory laws that allow for a prisoner to be released up to 24 hours before the
end of their non-parole period?
In some States and Territories, the law allows a prisoner to be released up to 24 hours before the
end of their non-parole period or, if their release day falls on a weekend or public holiday, on the
last working day before the release date.
Current subsection 19AZD(2) of the Crimes Act will still be in force and allows such laws to be
applied to federal offenders.
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LENGTH OF PAROLE PERIOD
Currently the definition of parole period under subsection 16(1) of the Crimes Act states that a
parole period for a federal offender who is not subject to a life sentence cannot exceed five years.
The parole period for a federal offender serving a life sentence must be at least five years in
duration.
This definition will be replaced with a new definition that will state that ‘parole period’ will have
the meaning given by new section 19AMA.
Release on parole—section 19AMA—start and end of parole period
The new section 19AMA will set out when a federal offender’s parole period starts and ends.
In relation to when a parole period starts, this will depend on whether or not the person is serving a
State or Territory sentence at the time the parole order is made:
•
If a person is not serving a State or Territory sentence the parole period starts when the
person is released from prison (noting that a person cannot be released from prison until the
person certifies on the parole order, or a copy, that he or she accepts the conditions to which
the order is subject).
•
As stated above there may be some circumstances that, although a person is also serving a
State or Territory sentence, the Attorney-General may make a parole order while the person
is still imprisoned for the State or Territory offence. In this regard, the federal offender’s
parole period will start when the person certifies on the parole order that he or she accepts
the conditions to which the order is subject (see new paragraph 19AMA(2)(b)).
In relation to when a parole period ends, this will depend on whether or not the person is serving a
federal life sentence:
•
If a person is not serving a federal life sentence—at the end of the last day of their federal
sentence. This is illustrated in Diagram 1 below.
•
If a person is serving a federal life sentence—at the later of five years after the person is
released from prison or the end of a later day (if any specified) in the parole order (not being
a day earlier than five years after the person’s expected release from prison).
NOTE: This is a change from the current situation. Currently a federal parole period ends either
five years after the person’s release from prison, or the last day of their sentence, whichever occurs
first. This means that the parole period of a federal offender who is not subject to a federal life
sentence cannot exceed five years.
The new section 19AMA will ensure that federal offenders who are not serving a federal life
sentence serve the full sentence imposed by the court. That is, their parole period will end at
the last day of their federal sentence.
This change to a parole period end date only applies to federal offenders for whom a parole order is
made on or after 4 October 2012.
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Diagram 1:
25 year head sentence imposed by court
Current law—5 year maximum
parole period
12 year non-parole period imposed
by court
New law—parole period
extends to end of sentence.
Sentence set by court is fully
enforced
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LENGTH OF LICENCE PERIOD
Under section 19AP of the Crimes Act, the Attorney-General may grant a licence for a federal
offender to be released from prison. A licence authorises the release of the offender earlier than the
date on which he or she would have been eligible for release from prison under the terms of the
sentence imposed by the court. A licence can be granted to any federal offender who is serving a
prison sentence—whether or not the sentencing court has set a non-parole period, made a
recognizance release order, 1 or imposed a fixed sentence or a life sentence without parole.
The Attorney-General must not grant a licence under section 19AP of the Crimes Act unless he or
she is satisfied that exceptional circumstances exist which justify the grant of the licence.
A new definition of ‘licence period’ will be inserted into the Crimes Act under subsection 16(1) and
it will differ according to whether the federal offender, who is released on licence, is:
(i) subject to a recognizance release order
(ii) serving a federal life sentence, or
(iii) serving any other type of federal sentence.
(i) Licence period where offender is subject to a recognizance release order
Paragraph (a) of the new definition of licence period will apply to federal offenders released on
licence who are subject to a recognizance release order.
When a person is released on licence, the conditions imposed on the person under the licence will
be basically the same as would apply under a parole order. These conditions typically require the
offender to be supervised by a parole officer, report regularly to that officer and obtain approval for
accommodation and employment.
In contrast, the conditions of a recognizance release order are usually much less comprehensive
than those of a licence or parole order. Offenders released on recognizance release orders are not
generally under supervision and usually the only condition of a recognizance release order is to be
of good behaviour for a set period. As a result, it would not be fair to a federal offender who is
eligible for release on a recognizance release order to be subject to the licence until the end of his or
her sentence, as this would mean that the person would be subject to stricter requirements than
would have been the case had exceptional circumstances not been found to exist and the person not
been released on licence under section 19AP of the Crimes Act. Instead, it is appropriate for the
offender to be subject to the stricter licence conditions for the period that, but for the licence, he or
she would have been imprisoned, and then be subject to the conditions of the recognizance release
order set by the sentencing court from the day the recognizance release order comes into effect.
This is illustrated Diagram 2 below.
1
Under paragraph 20(1)(b) of the Crimes Act, a court may sentence a person convicted of a federal offence to
imprisonment but direct that the person be released, either immediately or after he or she has served a specified period
of imprisonment, upon the giving of security that he or she will comply with certain conditions. This type of order is
referred to in the Crimes Act as a ‘recognizance release order’. It is analogous to a suspended sentence.
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Diagram 2:
Licence granted under section 19AP –
authorises prisoner’s release after serving
12 months of sentence
3 year sentence imposed by court
Court orders offender to be
released on a recognizance release
order after serving 18 months in
custody
Person subject
to licence
Person subject to
recognizance
release order.
(ii) Licence period where prisoner serving any other federal sentence
Subparagraph (b)(i) of the new definition of licence period will apply to federal offenders released
on licence who are not subject to a recognizance release order and have not been given a federal life
sentence. It will define the licence period for such offenders as starting on the day that the person is
released on licence and ending at the end of the last day of the person’s federal sentence. This is
illustrated in Diagram 3 below.
Diagram 3:
Licence granted under section 19AP –
authorises prisoner’s release after serving
5 years of sentence
7 year non-parole period imposed by
court
Licence period extends to end of
sentence. Sentence set by court
is fully enforced.
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(iii) Licence period where prisoner has been given a federal life sentence
Subparagraph (b)(ii) of the new definition of licence period will apply to federal offenders released
on licence who have been given a federal life sentence. It will define the licence period for such
offenders as starting on the day that the person is released on licence and ending at the end of the
day specified in the licence as the day on which the licence ends.
Current paragraph 19AP(6)(a) of the Crimes Act will not be affected by these amendments. This
provision provides that a licence granted to a person who is serving a federal life sentence must
specify the day on which the licence period ends, and this must not be earlier than five years after
the day that the person is released on licence. Therefore federal offenders who have been given a
life sentence and are released on licence will be subject to a licence period of at least five years. Of
course, the licence period can end on any day after five years from the day of the person’s release
that the decision maker considers appropriate. Decisions on the appropriate length of the licence
period will be made taking all relevant factors, including the offender’s age and state of health, into
account.
NOTE: This change to a licence period only applies to federal offenders for whom a licence is
made on or after 4 October 2012.
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LENGTH OF SUPERVISION PERIOD
A federal offender released on parole or licence may be subject to supervision during their parole or
licence period. ‘Supervision’ refers to oversight and management of the offender by the relevant
State or Territory parole service. Currently under the Crimes Act, a federal offender’s supervision
period can only be three years.
A new definition of supervision period will be inserted into the Crimes Act under subsection 16(1).
Under the new definition, if a parole order or licence provides that the offender will be subject to
supervision, the supervision period will:
• start when the offender is released from prison on parole or licence, and
• end either at the end of the offender’s parole or licence period, or on the earlier date
specified in the parole order or licence as the day on which the supervision period ends.
The result of this definition is that federal offenders are able to be supervised for their entire parole
or licence period.
NOTE: A parole order must specify whether or not the federal offender is to be released subject to
supervision (new paragraph 19AL(3)(b)).
If the parole order provides that a person is to be subject to supervision and it is proposed that the
period should end prior to the end of the person’s parole period, the parole order must specify the
date on which the supervision period ends (new paragraph 19AL(3)(c)).
If a parole order provides that a person is to be subject to supervision and does not specify the date
on which the supervision period ends, that period will end at the end of the parole period.
Will all federal offender’s supervision period extend to the end of their non-parole period?
If the circumstances of the case suggest that the offender does not require supervision for their
entire parole or licence period, an earlier date on which supervision will end can be specified in the
parole order or licence. This earlier date of expiry of the supervision period may be included in the
parole order or licence at the time that the parole order or licence is made.
Can the length of a federal offender’s supervision period be changed at a later time after the
parole order is made?
Yes. A decision to change the end date of the supervision period may be made at a later time.
The ability to change the end date of the supervision period in a parole order will be set out at new
paragraph 19AN(2)(c), which deals with parole order conditions. The ability to change the end date
of the supervision period in a licence will be set out at new paragraph 19AN(8)(c), which deals with
licence conditions.
NOTE: This change to a federal offender’s supervision period only applies to federal offenders for
whom a parole order is made on or after 4 October 2012. Those federal offenders currently only
parole will only have a maximum supervision period of three years.
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