Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)

Schedule 7 - Releasing federal offenders from prison

Federal offenders are people who have been convicted of a crime against a law of the Commonwealth.

Sentencing of federal offenders is largely governed by Part IB of the Crimes Act 1914 (Crimes Act).

When a court sentences a federal offender to a term, or terms, of imprisonment that, in total, exceed three years, it may fix a non-parole period or make a recognizance release order (section 19AB of the Crimes Act).

'Non-parole period' is defined at subsection 16(1) of the Crimes Act as 'that part of the period of imprisonment ... during which the person is not to be released on parole'. Put simply, the non-parole period is the minimum time that the offender must serve in prison. When an offender is released at the end of his or her non-parole period, he or she is released on parole . Parole allows an offender to be released back into the community under supervision and subject to conditions.

The Crimes Act provides that decisions on parole are to be made by the Attorney-General. The Attorney-General has delegated this power to senior officers within the Attorney-General's Department. In most cases, a delegate of the Attorney-General makes the decision on whether to release a federal offender to parole and the conditions on which such release is to take place. However, the Attorney-General retains the power to make parole decisions and orders, and does so in appropriate cases.

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.

Release on parole

Currently, if a federal offender is sentenced to a term of imprisonment of less than 10 years, and a non-parole period has been fixed by the court, then the Attorney-General must direct that the federal offender be released either:

•

at the end of the non-parole period, or

•

if appropriate, on a specified day not earlier than 30 days before the end of the non-parole period.

The Attorney-General has no discretion to refuse to release the prisoner on parole. A parole order must be made authorising the federal offender's release on parole. Accordingly, the prisoner will be released on parole at the end of his or her non-parole period, except if he or she refuses to sign the parole order to accept the conditions of his or her release on parole.

This type of release of a federal offender is referred to as 'automatic parole'. Automatic parole can be problematic. For example, where reports received from State or Territory corrective services agencies do not support the grant of parole, there is no discretion to refuse or delay the release of the offender. This is particularly problematic for high risk sex offenders and terrorism offenders.

In addition, where an offender commits a further offence while serving a sentence of imprisonment, but has not been sentenced at the time they become eligible for release on automatic parole, there is no discretion to refuse release.

The current arrangements can cause friction between federal and State or Territory offenders. In particular, State and Territory offenders are encouraged to take part in rehabilitation programs because a failure to do so might adversely affect their changes of parole. A federal offender has no such incentive. For example, under current arrangements, federal child sex offenders serving sentences of less than 10 years imprisonment can refuse to participate in sex offender treatment programs, as they know they will be released at the end of their non-parole period regardless.

The Commonwealth is the only jurisdiction that has automatic parole prescribed for sentences of imprisonment up to 10 years in duration. In most State and Territories discretionary parole is applied to all offenders apart from:

•

South Australia for sentences of less than five years imprisonment

•

New South Wales for sentences of less than three years imprisonment, and

•

Western Australia for sentences of less than 12 months imprisonment.

The amendments in this Schedule will make all parole decisions discretionary. Decisions on the parole of federal offenders serving sentences of imprisonment of 10 years or more are already discretionary. Automatic parole is being abolished to address concerns that the current arrangements necessitate the release of federal offenders who are not considered suitable for reintroduction into the community.

Parole and licence periods

Under the current definition of 'parole period' at subsection 16(1) of the Crimes Act, the 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.

Under the current definition of 'licence period' at subsection 16(1) of the Crimes Act, the licence period for a federal offender who is not subject to a life sentence cannot exceed five years.

The statutory maximum parole and licence periods mean that the total sentence imposed by the court may not be enforced. This is contrary to the concept of truth in sentencing.

The amendments in this Schedule will provide that, for a person not serving a life sentence, the parole period ends on the last day of their sentence. As is currently the case, the parole period for a federal offender serving a life sentence will be at least five years from the date of the offender's release on parole.

The amendments in this Schedule will provide that, for a person who is not serving a recognizance release order or federal life sentence, the licence period ends on the last day of their sentence. As is currently the case, the licence period for a federal offender serving a life sentence will be at least five years from the date of the offender's release on licence.

Supervision period

Under both current arrangements and the arrangements to be introduced by this Schedule, a person 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.

Under the current definition of 'supervision period' in subsection 16(1), for federal offenders who have not been given a life sentence, the maximum length of the supervision period that can be set under the Crimes Act is three years. For federal offenders serving a life sentence the supervision period is specified in the parole order or licence and is limited only by the length of the parole or licence period (which is set by the Attorney-General and must be at least five years after the person is released on parole or licence - see current paragraphs 19AL(4)(a) and 19AP(6)(a)).

The current legislative maximum supervision period is an arbitrary construct that prevents federal offenders who may require ongoing supervision during their parole or licence period from receiving this assistance. This can have negative impacts for both the offender and the community. It is appropriate for any supervision period to be able to extend to the end of the parole or licence period, which in all cases other than federal life sentences, will reflect the actual sentence imposed by the court, rather than for this supervision period to be constricted artificially by legislation.

Crimes Act 1914

Item 1 - Subsection 16(1) (definition of licence period)

Item 1 will repeal the current definition of 'licence period' in subsection 16(1) of the Crimes Act and replace it with a new definition.

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, ^[13] 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. 'Exceptional circumstances' are not defined in the Crimes Act. However, the Explanatory Memorandum to section 19AP states that exceptional circumstances 'are intended to cover matters that occur, usually post-sentence, that significantly affect an offender's circumstances, such as extensive cooperation with law enforcement agencies or development of a serious medical condition which cannot be adequately treated within the prison system.'

The new definition of 'licence period' to be inserted by Item 1 differs 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.

(1) 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.

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.

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 in the following diagram:

(2) 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, which will not be affected by these amendments, 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. This provision will continue to apply, so that 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 Attorney-General 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.

(3) 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.

Currently the licence period for a federal offender who is not subject to a life sentence or a recognizance release order cannot exceed five years. The licence ends either five years after the offender's release on licence or on the end date of the offender's sentence, whichever occurs first.

As an example of how a licence currently operates in relation to a person who is not subject to a life sentence or a recognizance release order, suppose that a federal offender received a sentence of 12 years with a non-parole period of seven years. Due to an exceptional circumstance of some kind (eg significant post-sentence cooperation with law enforcement authorities), the Attorney-General grants a licence for the prisoner to be released from jail after serving five years of the sentence. Due to the current definition of licence period under subsection 16(1) of the Crimes Act, the licence period would end five years after the person's release from prison, or the last day of the sentence, whichever occurs first. Accordingly, under current provisions, the prisoner's licence would expire five years after his or her release, which would mean that he or she would only serve 10 years of the 12 year sentence imposed by the court. This means that the total sentence imposed by the court is not enforced and is contrary to the concept of truth in sentencing. This is illustrated below:

Subparagraph (b)(ii) of the new definition of licence period to be inserted by Item 1 will ensure that federal offenders serve the full sentence imposed by the court, as illustrated below:

Item 2 - Subsection 16(1) (definition of parole order)

Item 2 will repeal the current definition of 'parole order' in subsection 16(1) of the Crimes Act and replace it with a new definition.

The new definition will provide that a parole order is an order made under new subsection 19AL(1) or (2) which directs that a person be released from prison on parole. New subsections 19AL(1) and (2) are inserted into the Crimes Act by item 6 of this Schedule and are discussed below.

Item 3 - Subsection 16(1) (definition of parole period)

Item 3 will repeal the current definition of 'parole period' in subsection 16(1) of the Crimes Act and replace it with a new definition. 'Parole period' will have the meaning given by new section 19AMA, which will be inserted by item 6 of this Schedule and is discussed below.

Item 4 - Subsection 16(1) (definition of released on parole)

Item 4 will amend the current definition of 'released on parole' in subsection 16(1) of the Crimes Act. The new definition will provide that:

' released on parole means released from prison under a parole order in accordance with section 19AM'.

New section 19AM will be inserted by item 6 of this Schedule and is discussed below.

Item 5 - Subsection (16)(1) (definition of supervision period)

Item 5 will repeal the current definition of 'supervision period' in subsection 16(1) of the Crimes Act and replace it with a new definition.

Under both current arrangements and the arrangements to be introduced by this Schedule, a person 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.

Under the current definition of 'supervision period' in subsection 16(1), for federal offenders who have not been given a life sentence, the maximum length of the supervision period that can be set under the Crimes Act is three years. For federal offenders serving a life sentence the supervision period is specified in the parole order or licence and is limited only by the length of the parole or licence period (which is set by the Attorney-General and must be at least five years after the person is released on parole or licence - see current paragraphs 19AL(4)(a) and 19AP(6)(a)).

The current legislative maximum supervision period is an arbitrary construct that prevents federal offenders who may require ongoing supervision during their parole or licence period from receiving this assistance. This can have negative impacts for both the offender and the community. It is appropriate for any supervision period to be able to extend to the end of the parole or licence period, which in all cases other than federal life sentences, will reflect the actual sentence imposed by the court, rather than for this supervision period to be constricted artificially by legislation.

Under the new arrangements introduced by this Schedule, a parole order (which item 2 of this Schedule will define as an order made under new subsection 19AL(1) or (2) which directs that a person be released from prison on parole) or a licence issued under section 19AP must specify whether or not the federal offender is to be released subject to supervision. For parole orders, this requirement will be set out at new paragraph 19AL(3)(b), which will be inserted by item 6 of this Schedule and is discussed below. For licences, this requirement will be set out at new paragraph 19AP(6)(b), which will be inserted by item 9 of this Schedule and is discussed below.

If a parole order or licence provides that a person is to be subject to supervision and it is proposed that the supervision period should end prior to the end of the person's parole or licence period, the parole order or licence must specify the date on which the supervision period ends. For parole orders, this requirement will be set out at new paragraph 19AL(3)(c), which will be inserted by item 6 of this Schedule and is discussed below. For licences, this requirement will be set out at new paragraph 19AP(6)(c), which will be inserted by item 9 of this Schedule and is discussed below.

Under the new definition of supervision period inserted by this item, 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 offenders are able to be supervised for their entire parole or licence period. (As provided by paragraph 19AMA(3)(a), inserted by item 6 of this Schedule, except in the case of an offender who is serving a life sentence, the parole period will extend to the end of the person's sentence. As provided by the new definition of licence period inserted by item 1 of this Schedule and discussed above, except in the case of an offender who is serving a life sentence or is subject to a recognizance release order, the licence period will extend to the end of the person's sentence.)

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. A decision to change the end date of the supervision period may also be made at a later time. For example, suppose that an offender serving a federal sentence of 25 years imprisonment with a 10 year non-parole period is released on parole at the end of his or her non-parole period. Under new paragraph 19AMA(3)(a), inserted by item 6 of this Schedule, the offender's parole period will end on the date that his or her sentence ends. That is, the offender will be on parole for 15 years. Suppose that the offender's parole order specifies that he or she is to be subject to supervision, but does not specify a date on which the supervision period will end. The effect of the new definition of supervision period in this item is that the offender's supervision period will end at the end of his or her parole period. If, after 10 years on parole, the offender has demonstrated exemplary behaviour and is not considered to require further supervision, the offender's parole order could be changed to specify an earlier date on which the supervision period will expire. If, after a further two years, it was considered that the offender's behaviour illustrated that he or she would again benefit from supervision, the parole order or licence could be changed again to reinstate supervision. 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 is inserted by item 8 and is discussed below. 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 is inserted by item 11 and is discussed below.

Regardless of when an offender's supervision period expires, the other conditions of the parole order or licence continue to apply for the entire parole or licence period. This means that if the offender breaches any of the parole or licence conditions, the parole or licence may be revoked and the offender may be required to serve the remainder of his or her sentence in prison.

Item 6 - Subsections 19AL and 19AM

Item 6 will repeal the current sections 19AL and 19AM of the Crimes Act and insert new sections 19AL, 19AM and 19AMA.

Section 19AL: Release on parole - making of parole order

As discussed above, current section 19AL of the Crimes Act sets out different arrangements for the release on parole of federal offenders serving a term of imprisonment, depending on the length of the offender's sentence.

Where a federal offender is sentenced to a term of imprisonment of 10 years or more, for which a non-parole period has been fixed, the Attorney-General may determine whether or not the prisoner should be released on parole at the expiry of his or her non-parole period.

For federal offenders serving sentences of imprisonment of less than 10 years, for which a non-parole period has been fixed by the court, the Attorney-General must make a parole order directing that the person be released either:

•

at the end of the non-parole period, or

•

if appropriate, on a specified day not earlier than 30 days before the end of the non-parole period.

The Attorney-General has no discretion to refuse to release the prisoner on parole. A parole order must be made authorising the federal offender's release on parole. Accordingly, the prisoner will be released on parole at the end of his or her non-parole period, except if he or she refuses to sign the parole order to accept the conditions of his or her release on parole.

This type of release of a federal offender is referred to as 'automatic parole'.

Automatic parole can be problematic. For example, where the Attorney-General's Department receives reports from State or Territory corrective services agencies in relation to an offender eligible for automatic parole, and the reports do not support the grant of parole, there is no discretion to refuse or delay the release of the offender. This is particularly problematic for high risk sex offenders and terrorism offenders.

In addition, where an offender commits a further offence while serving a sentence of imprisonment, but has not been sentenced at the time they become eligible for release on automatic parole, there is no discretion to refuse release.

The current arrangements can cause friction between federal and State or Territory offenders. In particular, State and Territory offenders are encouraged to take part in rehabilitation programs because a failure to do so might adversely affect their changes of parole. A federal offender has no such incentive. For example, under current arrangements, federal child sex offenders serving sentences of less than 10 years imprisonment can refuse to participate in sex offender treatment programs, as they know they will be released at the end of their non-parole period regardless.

Current section 19AL will be repealed by this item. Automatic parole is being abolished to address concerns that the current arrangements necessitate the release of federal offenders who are not considered suitable for reintroduction into the community. New section 19AL will provide that all parole decisions are discretionary.

New subsection 19AL(1) will require the Attorney-General, 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.

As is currently the case, an offender does not need to apply for parole. The Attorney-General will be obliged, under new subsection 19AL(1), to make a decision about the offender's release on parole before the end of the offender's non-parole period.

To assist the Attorney-General to determine whether a federal offender should be released on parole, State and Territory corrective services agencies provide reports on the offender's behaviour in prison. Offenders may also make submissions on their release on parole. If an offender makes such a submission, the Attorney-General is required to take it into account when 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.

As is currently the case, common law procedural fairness requirements will be respected in the parole decision process. If the Attorney-General is considering refusing a prisoner's 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 Attorney-General 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.

As is currently the case, a decision not to make a parole order will be reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The operation of subsection 19AL(1) will be affected by new subsection 19AL(4). Subsection 19AL(4) is discussed below.

New subsection 19AL(2) will provide that if the Attorney-General refuses to make a parole order, the Attorney-General must give written notice to the 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 Attorney-General 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.

The requirement to reconsider a prisoner's release on parole within 12 months of refusing to make a parole order will be set out at paragraph 19AL(2)(b).

If the Attorney-General refuses to make a parole order authorising an offender's release on parole, either before the end of the offender's non-parole period under subsection 19AL(1) or when reconsidering the offender's release on parole under paragraph 19AL(2)(b), the Attorney-General must reconsider the offender's release on parole within 12 months of each refusal.

New subsection 19AL(3) will provide that every parole order must be in writing (paragraph (19AL(3)(a)) and specify whether or not the person is to be released subject to supervision (paragraph 19AL(3)(b)).

'Supervision' refers to oversight and management of the parolee by the relevant State or Territory parole service.

Under new paragraph 19AL(3)(c), if the parole order provides that the offender is to be subject to supervision and it is proposed that the supervision 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.

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. New paragraph 19AMA(3)(a), inserted by item 6 of this Schedule and discussed below, provides that, except in the case of an offender who is serving a life sentence, the parole period will extend to the end of the person's sentence.

New subsection 19AL(4) will set out the arrangements that apply to federal offenders who are eligible for release on federal parole, but will still be serving a State or Territory custodial sentence when their federal non-parole period expires. This provision will basically replicate the effect of current section 19AM of the Crimes Act.

The aim of new subsection 19AL(4) (and current section 19AM) is to ensure that offenders who are in this position are not released on federal parole until their release is authorised under the State or Territory sentence. This will ensure that all sentences imposed on an offender are enforced in the way intended by the sentencing court.

As set out above, new subsection 19AL(4) will apply to all federal offenders who are eligible for release on federal parole, but will still be serving a State or Territory custodial sentence when their federal non-parole period expires. However, slightly different arrangements apply according to whether the federal offender:

(i)

is not serving a federal life sentence

(ii)

is serving a federal life sentence, or

(iii)

is serving a State or Territory life sentence for which a non-parole period has not been set.

(1) Offender is not serving a federal life sentence

Paragraph 19AL(4)(a) will apply to federal offenders who are not serving a federal life sentence and are eligible for release on federal parole, but will still be serving a State or Territory custodial sentence when their federal non-parole period expires.

Paragraph 19AL(4)(a) will prevent the Attorney-General from making or refusing to make a parole order at the end of such a federal offender's non-parole period if the offender's federal parole period would end while the offender would still be imprisoned for a State or Territory offence. New paragraph 19AMA(3)(a), inserted by item 6 of this Schedule, provides that, except in the case of an offender who is serving a life sentence, the parole period will extend to the end of the person's sentence. Accordingly, if the federal offender's sentence (not being a life sentence) would expire before the person was released on the State or Territory sentence, the Attorney-General is not required to comply with subsection 19AL(1). That is, the Attorney-General is not required, before the end of the offender's federal non-parole period, to either make, or refuse to make, a parole order.

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.

(2) Offender is serving a federal life sentence

Paragraph 19AL(4)(b) will apply to federal offenders who are serving a federal life sentence and are eligible for release on federal parole, but will still be serving a State or Territory custodial sentence when their federal non-parole period expires. This situation differs from that covered by paragraph 19AL(4)(a) due to the differences in the end dates of parole periods for federal life sentences and federal sentences that are not life sentences.

New paragraph 19AMA(3)(a), inserted by item 6 of this Schedule, provides that, except in the case of an offender who is serving a life sentence, the parole period will extend to the end of the person's sentence. Thus, when a person who is serving a federal sentence that is not a life sentence is released on parole, the date on which the parole period expires is pre-determined and fixed.

However, for an offender serving a federal life sentence, new paragraph 19AMA(3)(b), inserted by item 6 of this Schedule, provides that the parole period ends at the later of the end day specified in the parole order (which must be at least five years after the person's expected release from prison) or five years after the person is released from prison. As a result, although a federal offender with a life sentence must serve at least five years on parole, the Attorney-General may specify a longer parole period. Thus, at the time that the Attorney-General is considering whether to release a federal offender serving a federal life sentence on parole, the parole period is unknown (except that it must be at least five years from the date of the offender's release from prison). This means that, until the Attorney-General determines the parole period to be served, it is not possible to determine whether that parole period will expire while the offender is imprisoned for the State or Territory offence. Accordingly, paragraph 19AL(4)(b) provides that the Attorney-General is not required to comply with subsection 19AL(1) and 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, paragraph 19AL(4)(b) also provides that the Attorney-General 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 Attorney-General to make a parole order authorising the offender's release on parole on 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.

(3) Offender is serving a State or Territory life sentence for which a non-parole period has not been set

Paragraph 19AL(4)(c) will apply to federal offenders who are serving any type of federal sentence (including a federal life sentence) and are eligible for release on federal parole, but will be serving a State or Territory life sentence, for which a non-parole period has not been fixed, when their federal non-parole period expires.

Paragraph 19AL(4)(c) will prevent the Attorney-General 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. 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.

Section 19AM: Release on parole - when is a person released

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 before the end of his or her non-parole period, or made 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 was required to consider the person's release on parole under subsection 19AL(1), and refused to make a parole order, but then decided, when reconsidering the person's release on parole within 12 months of the initial refusal (in accordance with paragraph 19AL(2)(b)) to make a parole order. A parole order might also be made after the end of the person's non-parole period if the person came within the circumstances set out in paragraph 19AL(4)(b), that is, the person was eligible for parole on a federal life sentence, but, at the time that the federal non-parole period ended was serving a State or Territory custodial sentence. The Attorney-General is not required to consider such an offender's release on parole until the person is released on the State or Territory sentence. Thus, if a federal parole order is made in such a case, it will be made after the offender's federal non-parole period has ended.

New paragraph 19AM(1)(a) will set out when a person must be released on parole under a parole order made before the end of the non-parole period . In this situation the person must be released at the earlier of:

•

the end of the non-parole period (subparagraph 19AM(1)(a)(i)), or

•

a day not earlier than 30 days before the end of the non-parole period that is specified in the parole order (subparagraph 19AM(1)(a)(ii)).

However, despite paragraph 19AM(1)(a), a federal offender must not be released from prison on parole until he or she certifies that they accept the conditions of the parole order by signing the parole order or a copy of the parole order. This requirement will be set out at new subsection 19AM(3) and is discussed below.

The ability under subparagraph 19AM(1)(a)(ii) to release an offender up to 30 days before the end of their non-parole period exists under current section 19AL of the Crimes Act. 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.

New paragraph 19AM(1)(b) will set out when a person must be released on parole under a parole order made after the end of the non-parole period . In this situation the person must be released at the later of:

•

the day after the parole order is made (subparagraph 19AM(1)(b)(i)), or

•

a day specified in the parole order, which must not be later than 30 days after the order is made (subparagraph 19AM(1)(b)(ii)).

As a result, if a parole order is made after the end of the offender's non-parole period the earliest day that the offender is eligible to be released is the day after the order is made. If necessary, for example in order to ensure that arrangements for the offender's release are finalised, the Attorney-General may specify that the prisoner is to be released up to 30 days after the order is made.

However, despite paragraph 19AM(1)(b), a federal offender must not be released from prison on parole until he or she certifies that they accept the conditions of the parole order by signing the parole order or a copy of the parole order. This requirement will be set out at new subsection 19AM(3) and is discussed below.

The operation of subsection 19AM(1) will also be subject to existing subsection 19AZD(2) of the Crimes Act. 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. Subsection 19AZD(2) applies such laws to federal offenders serving sentences of imprisonment in the State or Territory as if they were a State or Territory offender. These laws may be valuable as if, for example, an offender was due to be released on the Thursday before Easter, he or she might not be able to make contact with his or her parole officer, or access other support services, for five days. As release from prison is usually a stressful time for the offender, during which he or she may require additional support, it may be appropriate to release the offender 24 hours early, on the Wednesday, to allow them to have an initial meeting with their parole officer and access other services prior to the Easter break.

Subsection 19AM(2) will deal with the situation where a person is imprisoned for a State or Territory offence on the day he or she would otherwise be eligible for release under subsection 19AM(1). In this situation, the offender must be released from prison under the parole order on the same day he or she is released from prison for the State or Territory offence. This ensures that all sentences imposed on an offender are enforced in the way intended by the sentencing court.

However, despite subsection 19AM(2), a federal offender must not be released from prison on parole until he or she certifies that they accept the conditions of the parole order by signing the parole order or a copy of the parole order. This requirement will be set out at new subsection 19AM(3) and is discussed below.

Subsection 19AM(3) provides that, despite subsections 19AM(1) and (2), an offender must not be released from prison on parole until he or she has accepted the conditions of the parole order and certified their acceptance on the parole order or a copy of the order. This is an important safeguard to ensure that a person acknowledges and accepts their parole conditions. A person cannot be released until they do so. For example, if a parole order is made before the end of an offender's parole order and it does not specify a day not earlier than 30 days before the end of the non-parole period on which the offender is to be released, the offender would, pursuant to paragraph 19AM(1)(a), be required to be released on the last day of their non-parole period. However, if the offender refuses to accept the conditions of the parole order, they must remain in custody even though their non-parole period has expired.

Section 19AMA: Release on parole - parole period

Section 19AMA will set out when a federal offender's parole period starts and ends.

Subsection 19AMA(2) will set out when a federal offender's parole period starts . Different arrangements will apply according to whether or not the person is serving a State or Territory sentence at the time the parole order is made. As set out above, new subsections 19AL(4) and 19AM(2) will set out the arrangements that apply to federal offenders who are eligible for release on federal parole but will still be serving a State or Territory custodial sentence when their federal non-parole period expires. The effect of these provisions is that in some circumstances the Attorney-General may make a federal parole order while the person is serving a State or Territory sentence, but the offender will not be released under the parole order until the person is released from prison under the State or Territory sentence.

Subsection 19AMA(2) will provide that a federal offender's parole period starts at the earlier of the following times:

•

when the person is released from prison on parole (paragraph 19AMA(2)(a)), or

•

if the person is serving a State or Territory sentence at the time the parole order is made, when he or she certifies on the parole order, or a copy of the parole order, that he or she accepts the parole conditions (paragraph 19AMA(2)(b)).

For an offender who is not serving a State or Territory sentence at the time the federal parole order is made, the day on which the parole period starts will be the same day that he or she is released on parole.

For an offender who is serving a State or Territory sentence at the time the federal parole order is made, the day on which the parole period starts may differ from the day that he or she is released on parole. For example, suppose that a person is serving two sentences, which commenced on the same day:

•

a federal sentence of 10 years imprisonment, for which a non-parole period of six years has been fixed, and

•

a State or Territory fixed term sentence of seven years imprisonment.

At the end of the person's federal non-parole period he or she will still be serving the State or Territory custodial sentence. In accordance with new paragraph 19AL(4)(a) (discussed above) the Attorney-General may make a parole order for the person, as the person's federal parole period will extend past the end of the time that the person will be imprisoned for the State or Territory offence. In this circumstance, in accordance with paragraph 19AMA(2)(b), the parole order will start as soon as the offender signifies his or her acceptance of the conditions of the federal parole order by signing that order, or a copy of the order. However, in accordance with new subsection 19AM(2) the person must not be released on the federal parole order until he or she is released from prison on the State or Territory sentence.

Under existing subsection 19AN(1), all federal parole orders are subject to the condition that the offender must, during the parole period, be of good behaviour and not violate any law. Subsection 19AN(1) also allows other conditions to be imposed in the 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. If a parole order is made for a person who is to remain in custody on a State or Territory sentence for a portion of the federal parole period, the parole order will provide that these additional conditions do not come into effect until the person is released from custody on the State or Territory sentence. This is because it would not be appropriate, or meaningful, to impose these conditions on a prisoner.

However, the mandatory parole condition to be of good behaviour and not violate any law applies from the time that the order takes effect. In the above example, the offender is required to comply with this condition from the day that he or she signs the parole order. It is important that this condition comes into effect before the person's release from prison. This is because it will allow the Attorney-General to revoke the prisoner's parole order before he or she is eligible to be released from prison on the State or Territory sentence if, in the time after the parole order was made, it has become apparent that it would not be appropriate to release the person on parole. This might occur if, subsequent to the parole order being made and the offender accepting the parole conditions, he or she has had multiple urinalysis tests that indicate repeated use of illicit drugs. If the parole period only commenced on the offender's release from prison, the Attorney-General would not be able to revoke the parole order prior to the offender's release, which could have implications for the safety of the community and the prisoner.

Subsection 19AMA(3) will set out when a federal offender's parole period ends . Different arrangements will apply according to whether or not the person is serving a federal life sentence.

New paragraph 19AMA(3)(a) will apply to offenders who are not serving a federal life sentence. For these offenders, the parole period will end when their sentence ends.

Currently the parole period for a federal offender who is not subject to a life sentence cannot exceed five years. This is due to the current definition of 'parole period' at subsection 16(1) of the Crimes Act. Currently a parole period for a federal offender who is not subject to a life sentence ends either five years after the offender's release on parole or on the end date of the offender's sentence, whichever occurs first.

As an example of how a parole order currently operates in relation to a person who is not subject to a life sentence, suppose that a federal offender received a sentence of 25 years with a non-parole period of 12 years, and that the person is released on parole at the end of their non-parole period. Due to the current definition of parole period at subsection 16(1) of the Crimes Act, the parole period would end five years after the person's release from prison, or the last day of the sentence, whichever occurs first. Accordingly, under current provisions, the prisoner's parole period would expire five years after his or her release, which would mean that he or she would only serve 17 years of the 25 year sentence imposed by the court. This means that the total sentence imposed by the court may not be enforced and is contrary to the concept of truth in sentencing. This is illustrated below:

New paragraph 19AMA(3)(a) will ensure that federal offenders who are not serving a federal life sentence serve the full sentence imposed by the court, as illustrated below:

New paragraph 19AMA(3)(b) will apply to offenders who are serving a federal life sentence . The parole period for these offenders will end at the later of:

•

five years after the person is released from prison in accordance with section 19AM (subparagraph 19AMA(3)(b)(i)), or

•

the end of a later day (if any) specified in the parole order (subparagraph 19AMA(3)(b)(ii)).

This will mean that from the time of their release on parole a federal offender serving a life sentence will serve a parole period of at least five years. This continues the current arrangements in relation to the parole periods of federal offenders serving life sentences (see the current definition of parole period at subsection 16(1) of the Crimes Act and current subsection 19AL(4) of the Crimes Act.) Of course, the parole period can end on any day after five years from the day of the person's release that the Attorney-General considers appropriate. Decisions on the appropriate length of the parole period will be made taking all relevant factors, including the offender's age and state of health, into account.

Item 7 - Paragraph 19AN(1)(b)

Item 7 will amend current paragraph 19AN(1)(b).

Section 19AN of the Crimes Act deals with conditions of a parole order. Paragraph 19AN(1)(b) refers to a supervision condition.

Under both the existing arrangements and the arrangements to be introduced by this Schedule, a federal parolee may be subject to supervision during their parole period.

'Supervision' refers to oversight and management of the parolee by the relevant State or Territory parole service.

Current paragraph 19AL(4)(b) provides that if it is proposed that an offender be subject to supervision for any part of the parole period, the parole order must specify the date that the supervision period will end. In accordance with the existing definition of supervision period at subsection 16(1) of the Crimes Act, for federal offenders who have not been given a life sentence, the maximum length of the parole supervision period that can be set under the Crimes Act is three years. This issue is explored in the discussion on the new definition of supervision period, at item 5 of this Schedule.

Under new paragraph 19AL(3)(b), which will be inserted by item 6 of this Schedule and is discussed above, a parole order must specify whether or not the federal offender is to be released subject to supervision.

Under new paragraph 19AL(3)(c), if a parole order provides that a person is to be subject to supervision and it is proposed that the supervision 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.

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 (see the new definition of supervision period at subsection 16(1), inserted by item 5 of this Schedule and discussed above).

The item amends paragraph 19AN(1)(b) to refer to the new supervision provision - that is new subsection 19AL(3). Amended paragraph 19AN(1)(b) will provide that if a parole order made under section 19AL specifies, in accordance with subsection 19AL(3), that the person is to be released subject to supervision, that parole order is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a parole officer, or other specified person, and obey all reasonable directions of that officer or other person. Apart from the reference to a different provision (new subsection 19AL(3) rather than existing subsection 19AL(4)), paragraph 19AN(1)(b) continues to apply as it currently does - by requiring parolees to be subject to parole officer supervision, and obey the directions of that officer, if their parole order specifies that they are to be released subject to parole supervision.

Item 8 - Subsection 19AN(2)

Item 8 will amend current subsection 19AN(2).

Section 19AN of the Crimes Act deals with conditions of a parole order. Current subsection 19AN(2) provides that, at any time before the end of an offender's parole period, the Attorney-General may, by order in writing, vary or revoke a condition of the parole order, or impose additional conditions.

Parole conditions must be reasonable and must be consistent with the purposes of parole (the reintegration and rehabilitation of the offender and the protection of the community).

A condition of a parole order may need to be varied or revoked, or an additional condition may need to be imposed, if a change to the offender's circumstances means that the parole conditions are no longer reasonable, or are no longer assisting the offender's reintegration or rehabilitation, or protecting the community.

The amendment to subsection 19AN(2) will continue the Attorney-General's current power to vary or revoke a condition of the parole order, or impose additional conditions. However, it will also, at new paragraph 19AN(2)(c), allow the Attorney-General to change the day on which the offender's supervision period ends.

As explored in detail in discussion on the new definition of supervision period, inserted by item 5 of this Schedule, and on new subsection 19AL(3), inserted by item 6 of this Schedule, a parole order may provide that an offender is to be subject to supervision. 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.

If the circumstances of the case suggest that the offender does not require supervision for their entire parole period, an earlier date on which the supervision will end can be specified in the parole order. This earlier date of expiry of the supervision period may be included in the parole order at the time that the parole order is made. New paragraph 19AN(2)(c), inserted by this item, also allows the end date of the supervision period to be changed at a later time.

For example, an offender serving a federal sentence of 25 years imprisonment with a 10 year non-parole period is released on parole at the end of his non-parole period. Under new paragraph 19AMA(3)(a), inserted by item 6 of this Schedule, the offender's parole period will end on the date that his or her sentence ends. That is, the offender will be on parole for 15 years. Suppose that the offender's parole order specifies that he is to be subject to supervision, but does not specify a date on which the supervision period will end. The effect of the new definition of supervision period inserted by item 5 of this Schedule is that the offender's supervision period will end at the end of his or her parole period. If, after 10 years on parole, the offender has demonstrated exemplary behaviour and is not considered to require further supervision, the offender's parole order could be changed, under new paragraph 19AN(2)(c), to specify an earlier date on which the supervision period will expire. If, after a further two years, it was considered that the offender's behaviour illustrated that he or she would again benefit from supervision, the parole order could be changed again under paragraph 19AN(2)(c) to reinstate supervision.

The ability to change the day on which an offender's supervision period will end will allow the offender's changing circumstances to be taken into account and will maximise the ability of the parole order to promote the offender's reintegration and rehabilitation, and protect the community.

Item 9 - Paragraph 19AP(6)(b)

Item 9 will amend paragraph 19AP(6)(b).

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, 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. 'Exceptional circumstances' are not defined in the Crimes Act. However, the Explanatory Memorandum to section 19AP states that exceptional circumstances 'are intended to cover matters that occur, usually post-sentence, that significantly affect an offender's circumstances, such as extensive cooperation with law enforcement agencies or development of a serious medical condition which cannot be adequately treated within the prison system.'

Under both the existing arrangements and the arrangements to be introduced by this Schedule, a person released on licence under section 19AP may be subject to supervision during their licence period.

Current paragraph 19AP(6)(b) provides that if it is proposed that an offender be subject to supervision for any part of the licence period, the licence must specify the date that the supervision period will end. In accordance with the existing definition of supervision period at subsection 16(1) of the Crimes Act, for federal offenders who have not been given a life sentence, the maximum length of the licence supervision period that can be set under the Crimes Act is three years. This issue is explored in the discussion on the new definition of supervision period, at item 5 of this Schedule.

Under new paragraph 19AP(6)(b), inserted by this item, a licence must specify whether or not the federal offender is to be released subject to supervision.

Under new paragraph 19AP(6)(c), if a person is to be subject to supervision and it is proposed that the supervision period should end prior to the end of the person's licence period, the licence must specify the date on which the supervision period ends. If a date is not specified, the licence period will end in accordance with the new definition of licence period inserted by item 1 of this Schedule. This new definition provides that the date on which a licence period ends differs 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.

See the discussion under item 1 for more details on the length of a licence period.

Item 10 - Paragraph 19AP(7)(b)

Item 7 will amend current paragraph 19AP(7)(b).

As set out in the discussion of item 9, above, section 19AP allows the Attorney-General to 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.

Under existing subsection 19AP(7), all licences are subject to the condition that the offender must, during the licence period, be of good behaviour and not violate any law. Subsection 19AP(7) also allows other conditions to be imposed in the licence. Paragraph 19AP(7)(b) refers to a supervision condition.

Under both the existing arrangements and the arrangements to be introduced by this Schedule, a federal offender may be subject to supervision during their licence period.

Current paragraph 19AP(6)(b) provides that if it is proposed that an offender be subject to supervision for any part of the licence period, the licence must specify the date that the supervision period will end. In accordance with the existing definition of supervision period at subsection 16(1) of the Crimes Act, for federal offenders who have not been given a life sentence, the maximum length of the licence supervision period that can be set under the Crimes Act is three years. This issue is explored in the discussion on the new definition of supervision period, at item 5 of this Schedule.

Under new paragraph 19AP(6)(b), which will be inserted by item 9 of this Schedule and is discussed above, a licence must specify whether or not the federal offender is to be released subject to supervision.

The item amends paragraph 19AP(7)(b) to provide that if a licence specifies, in accordance with subsection 19AP(6), that the person is to be released subject to supervision, that licence is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a parole officer, or other specified person, and obey all reasonable directions of that officer or other person. In essence paragraph 19AP(7)(b) continues to apply as it currently does - by requiring offenders released on licence to be subject to parole officer supervision, and obey the directions of that officer, if their licence specifies that they are to be released subject to supervision.

Item 11 - Subsection 19AP(8)

Item 11 will amend current subsection 19AP(8).

As set out in the discussion of item 9, above, section 19AP allows the Attorney-General to 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.

Current subsection 19AP(8) provides that, any time before the end of an offender's licence period, the Attorney-General may, by order in writing, vary or revoke a condition of the licence, or impose additional conditions.

As with parole conditions, licence conditions must be reasonable and must be consistent with the purposes of graduated release (the reintegration and rehabilitation of the offender and the protection of the community).

A condition of a licence may need to be varied or revoked, or an additional condition may need to be imposed, if a change to the offender's circumstances means that the licence conditions are no longer reasonable, or are no longer assisting the offender's reintegration or rehabilitation, or protecting the community.

The amendment to subsection 19AP(8) will continue the Attorney-General's current power to vary or revoke a condition of a licence, or impose additional conditions. However, it will also, at new paragraph 19AP(8)(c), allow the Attorney-General to change the day on which the offender's supervision period ends.

As explored in detail in discussion on the new definition of supervision period, inserted by item 5 of this Schedule, and on new paragraph 19AP(6)(b), inserted by item 9 of this Schedule, a licence must specify whether or not the federal offender is to be released subject to supervision.

Under new paragraph 19AP(6)(c), if a person is to be subject to supervision and it is proposed that the supervision period should end prior to the end of the person's licence period, the licence must specify the date on which the supervision period ends. If a date is not specified, the licence period will end in accordance with the new definition of licence period inserted by item 1 of this Schedule. This new definition provides that the date on which a licence period ends differs 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.

See the discussion under item 1 for more details on the length of a licence period.

If the circumstances of the case suggest that the offender does not require supervision for their entire licence period, an earlier date on which the supervision will end can be specified in the licence. This earlier date of expiry of the supervision period may be included in the licence at the time that it is made. New paragraph 19AP(8)(c), inserted by this item, also allows the end date of the supervision period to be changed at a later time.

For example, suppose that an offender serving a federal sentence of 25 years imprisonment with a 12 year non-parole period is released on licence after serving 10 years in custody. The licence specifies that the offender is to be subject to supervision, but does not specify the date on which the supervision period ends. Accordingly, the supervision period ends at the same time as the licence period. In accordance with the new definition of licence period inserted by item 1 of this schedule, the licence period will end on the date that the offender's sentence ends. That is, the offender will be subject to a licence, and subject to supervision, for 15 years. If, after 10 years on licence, the offender has demonstrated exemplary behaviour and is not considered to require further supervision, the offender's licence could be changed, under new paragraph 19AP(2)(c), to specify an earlier date on which the supervision period will expire. If, after a further two years, it was considered that the offender's behaviour illustrated that he or she would again benefit from supervision, the licence could be changed again under paragraph 19AP(2)(c) to reinstate supervision.

The ability to change the day on which an offender's supervision period will end will allow the offender's changing circumstances to be taken into account and will maximise the ability of the licence to promote the offender's reintegration and rehabilitation, and protect the community.

Item 12 - Application of amendments

Item 12 will set out how the new arrangements introduced by this schedule will apply.

As set out at Clause 2 of the Bill, this Schedule will commence either on proclamation, or if a proclamation is not made earlier, six months after the Act receives Royal Assent. The delay is to allow time for State and Territory corrective services departments and probation and parole agencies to adapt to the new arrangements introduced by the Schedule.

Licences

Subsection (1) of item 12 relates to amendments that will affect licences granted by the Attorney-General under section 19AP of the Crimes Act. It provides that the amendments made by items 1, 9 and 11 apply in relation to a licence granted under amended section 19AP at or after the commencement of this Schedule.

This means that licences granted at or after the commencement of this Schedule (which, under clause 2 of the Bill, will be no later than six months after the Act receives Royal Assent) will:

•

be operative for the period set out under the new definition of 'licence period' at subsection 16(1) (inserted by item 1)

•

be required to specify whether the offender is to be released subject to supervision (item 9)

•

be required to specify the date on which the supervision period ends, if the person is to be subject to supervision and it is proposed that the supervision period should end prior to the end of the person's licence period (item 9), and

•

be able to be amended by the Attorney-General varying or revoking a condition of the licence, imposing additional conditions, or changing the day on which the supervision period ends (item 11).

Licences that are granted before the commencement of this Schedule will be subject to the current arrangements set out in the existing definition of 'licence period' in subsection 16(1) and in existing section 19AP.

The differences between the current and amended definitions of 'licence period' are explored in the discussion under item 1 of this Schedule. For offenders who are granted a licence before the commencement of this Schedule and are not serving a life sentence, the maximum licence period will be five years and the maximum supervision period will be three years. The exact date on which these periods end will be specified in the offender's licence.

A licence granted before the commencement of this Schedule will be required to specify (among other things) the day on which any supervision period to which the licence is to be subject ends, which must be a day fixed in accordance with the current definition of 'licence period' at subsection 16(1). A licence made after the commencement of this Schedule will not need to specify a date on which supervision (if specified) is to end. If no such date is specified, the supervision period will end when the licence period ends.

The Attorney-General has power to amend a licence issued before the commencement of this Schedule, during the licence period, by varying or revoking a condition of the licence, or by imposing additional conditions.

Parole

Subsection (2) of item 12 relates to amendments that will affect parole. It provides that the amendments made by:

•

item 2 - new definition of 'parole order' inserted into subsection 16(1)

•

item 3 - new definition of 'parole period' inserted into subsection 16(1)

•

item 4 - amendment to definition of 'released on parole' at subsection 16(1)

•

item 6 - new sections 19AL, 19AM and 19AMA, which set out the requirements for making a parole order, when a person is released on a parole order, and the duration of a parole period, and

•

item 8 - amendment of subsection 19AN(2) to provide that, during the parole period the Attorney-General may amend a parole order by varying or revoking a condition of the parole order, imposing additional conditions, or changing the day on which the supervision period ends

apply in relation to a person for whom a non-parole period has been fixed, whether before, at or after the commencement of this Schedule, but do not apply in relation to a person for whom a parole order has been made under current section 19AL.

This means that federal offenders for whom a parole order has been made prior to the commencement of this Schedule (which, under clause 2 of the Bill, will be no later than six months after the Act receives Royal Assent) will not be affected by the amendments. Accordingly, if they are serving a federal sentence of less than 10 years for which a non-parole period has been fixed, the Attorney-General will have had to make the order authorising their release on parole at the end of their non-parole period (as required under existing subsection 19AL(1)) and, if they are not serving a federal life sentence, their maximum parole period will be five years and their maximum supervision period will be three years. The exact date on which these periods end will be specified in the offender's parole order.

Federal offenders who have received a sentence of imprisonment for which a non-parole period is fixed and in relation to whom a parole order has not been made at the commencement of this Schedule will be subject to the amendments made by this Schedule. This means that:

•

regardless of the length of their sentence, the Attorney-General will have discretion to refuse their release on parole at the end of their non-parole period (new subsection 19AL(1) discussed under item 6, above)

•

any decision by the Attorney-General to refuse to make a parole order will need to be reconsidered within 12 months (new subsection 19AL(2) discussed under item 6, above)

•

for a person who has not received a federal life sentence, their parole period will end on the date that their sentence ends (subsection 19AMA(3) discussed under item 6, above)

•

if a person is released on parole subject to supervision, that supervision period will extend to the end of the person's parole period, unless their parole order specifies an earlier date on which the supervision period will end (new subsection 19AL(3) discussed under item 6, above), and

•

if a person is released on parole subject to supervision, the Attorney-General is able to change the date on which that supervision is to end (new paragraph 19AN(2)(c) discussed under item 6, above).

These new arrangements will apply to all federal offenders who are sentenced to a period of imprisonment, with a non-parole period, before, on or after the commencement of this Schedule, for whom a parole order has not been made at the commencement of this Schedule.

Automatic parole is being abolished to address concerns that the current arrangements necessitate the release of federal offenders who are not considered suitable for reintroduction into the community. This is especially critical for serious sex offenders and terrorism offenders. If the amendments were only applied to those federal offenders sentenced after the commencement of the amendments, the Attorney-General would still be required to release federal offenders on parole, even when they were not considered suitable for release. To ensure public safety it is important that all parole decisions made after the commencement of the amendments are discretionary.

It is also appropriate for the amendments to remove the maximum parole and supervision periods to apply to all parole orders made after the commencement of this Schedule. The current legislative maximum parole period of five years means that, in many cases, the sentence imposed by the court is not fully enforced. This is contrary to the concept of truth in sentencing.

Subsection (3) of item 12 provides that new paragraph 19AL(2)(b) (introduced by item 6 of this Schedule) will apply in relation to a person who has been refused release on parole under paragraph 19AL(2)(b) of the old law, as if that refusal had occurred at the commencement of the Schedule.

New paragraph 19AL(2)(b) requires the Attorney-General to reconsider an offender's release on parole within 12 months of each refusal of parole.

Paragraph 19AL(2)(b) of the old law allowed the Attorney-General to direct that a person, serving a sentence of imprisonment of 10 years or more for which a non-parole period had been fixed, was not to be released on parole at, or at any time before, the end of their non-parole period.

Subsection (3) of item 12 will ensure that people who have been refused parole under the old law have their release on parole reconsidered within 12 months of the commencement of this Schedule. However, if a person has been refused release on parole under the old law and has been notified of a timeframe for reconsideration that is earlier than that which would apply subsequent to subsection (3) of item 12, the reconsideration will take place within the earlier timeframe. This will ensure that the offender is not adversely affected by this provision.

Supervision periods for licences and parole

Subsection (4) of item 12 relates to amendments that will affect the supervision periods for licences and parole. It provides that the amendments made by:

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item 5 - new definition of 'supervision period' inserted into subsection 16(1)

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item 7 - amendment of paragraph 19AN(1)(b) to refer to new subsection 19AL(3), and

•

item 10 - amendment of paragraph 19AP(1)(b) to refer to new subsection 19AP(6)

apply in relation to a parole order made under new section 19AL, or a licence made under amended section 19AP, at or after the commencement of this Schedule.

This means that federal offenders for whom a parole order or licence has been made prior to the commencement of this Schedule (which, under clause 2 of the Bill, will be no later than six months after the Act receives Royal Assent) will not be affected by the changes to 'supervision period'. Accordingly, if a parole order or licence has been made before the commencement of this Schedule, and the offender is not serving a federal life sentence, his or her maximum supervision period will be three years. The exact date on which the supervision period ends will be specified in the offender's parole order or licence.

Parole orders or licences made under the new provisions will provide that:

•

if a person is released on parole or licence subject to supervision, the supervision period will extend to the end of the person's parole or licence period, unless their parole order or licence specifies an earlier date on which the supervision period will end (new subsection 19AL(3) discussed under item 6, above)

•

for a person who is not serving a federal life sentence, the parole period ends on the last day of their sentence (new paragraph 19AMA(3)(a) discussed under item 6)

•

for a person who is not serving a recognizance release order or federal life sentence, the licence period ends at the end of their sentence. See the discussion under item 1 for more details on the length of a licence period.

The current legislative maximum supervision period is an arbitrary construct that prevents federal offenders who may require ongoing supervision during their parole or licence period from receiving this assistance. This can have negative impacts for both the offender and the community. It is appropriate for any supervision period imposed under a parole order or licence that is made on after the commencement of this Schedule to be able to extend to the end of the parole or licence period, which in all cases other than federal life sentences, will reflect the actual sentence imposed by the court, rather than for this supervision period to be constricted artificially by legislation.

Definitions

Subsection (5) of item 12 will set out the definitions that apply to this item. It will provide that:

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amended law means the Crimes Act 1914 as in force at and after the commencement of this item, and

•

old law means the Crimes Act 1914 as in force immediately before the commencement of this item.

As set out above, Clause 2 of the Bill will provide that this entire Schedule will commence either on proclamation, or if a proclamation is not made earlier, six months after the Act receives Royal Assent.

This Explanatory Memorandum has also referred to the amended law as the 'new law' or the 'new arrangements'. The old law has also been referred to as the 'existing law' or the 'current arrangements'. This is because at the time of writing this document, the amendments contained in the Bill are proposed, but have not yet been accepted by the Parliament.