Explanatory Memorandum
(Circulated by authority of the Attorney-General and Minister for Industrial Relations, the Hon Christian Porter MP)Schedule 13 - Revocation of parole order or licence
Crimes Act 1914
Item 1 - Subsection 19AA(2)
305. Section 19AA of the Crimes Act covers remissions and reductions of federal sentences. Subsection 19AA(2) applies state and territory laws relating to "clean street time" to federal offenders. "Clean street time" refers to the period between when an offender is released on parole or licence up to the time their parole or licence is revoked. Revocation can occur either as a result of the person committing a new offence or because they have failed to comply with a condition of their release. Upon revocation, the person is liable to serve that part of the sentence that was outstanding at the time of their release from prison. However, that period can be reduced by "clean street time".
306. Item 1 is consequential to item 5 which introduces a federal policy for "clean street time" in instances where revocation occurs following the commission of an offence. Removing the reference in subsection 19AA(2) to parole orders or licences that are "taken to be revoked" is necessary to ensure that the application of state and territory laws on "clean street time" will now only operate in respect of revocations made by the Attorney-General under section 19AU of the Crimes Act.
Item 2 - Subsection 19AA(3)
307. Not all states and territories allow credit for time served without reoffending while on parole or licence. Proposed subsection 19AA(3) provides that if the state or territory law does not provide for "clean street time" the court or prescribed authority must take into account the time the person spent on parole or licence before revocation when determining the further period to be served in prison.
308. The amendment is consequential to item 5 and is necessary so that subsection 19AA(3) only applies to revocations made by the Attorney-General under section 19AU of the Crimes Act.
Item 3 - Subsection 19AG(5) (paragraph (ca) of the note)
309. This is a consequential amendment to items 7 and 8. This note is no longer relevant as it is no longer possible to make a recognizance release order under section 19AR of the Crimes Act.
Item 4 - Subsection 19APB(2)
310. The effect of section 19APB of the Crimes Act is that while a parole order or licence is in place the parolee or licensee is still considered to be serving their sentence. It is only when the parole or licence period ends without the parole order or licence having been revoked, or the person is otherwise discharged from imprisonment, that the person has completed their sentence.
311. Item 4 is a consequential amendment to item 5. The amendment ensures that where the parole or licence period ends before the revocation time determined under section 19AQ of the Crimes Act, subsection 19APB(2) operates to prevent the discharge of the sentence under subsection 19APB(1).
312. The proposed new subsection 19APB(2) applies where a determination as to revocation time under subsections 19AQ(1) or (2) of the Crimes Act occurs at a time after the end of the parole or licence period and has the effect that the person is taken not to have completed the sentence and remains liable to serve the balance of the outstanding sentence.
Item 5 - Section 19AQ
313. This item amends and replaces the existing section 19AQ of the Crimes Act which provides that a parole order or licence is automatically revoked when the person is sentenced for a further offence committed while on parole or licence. A person on parole or licence who has their parole revoked is liable to serve the remainder of the outstanding sentence less any "clean street time". Clean street time refers to the period between when an offender is released into the community on parole or licence and the time their parole or licence is revoked following the commission of a new offence.
314. The effect of automatic revocation based on the date of sentencing rather than at the time at which the further offence was committed has led to offenders receiving credit for time during which they have not been of good behaviour. Often it is also the case that the offender has no time left to serve because of the lapse of time between the commission of the offence and the date of sentencing. The proposed new section 19AQ addresses this problem by requiring the court that sentences the person for the new offence to determine the time when the parole order or licence is taken to be revoked by determining when the new offence was committed.
315. Under proposed subsection 19AQ(1), if a person who is serving the balance of their sentence out in the community on a parole order commits a further federal, state or territory offence during the parole period, the court sentencing the person for the new offence must determine the time when the parole order is taken to have been revoked. However, if the new sentence is a sentence of, or aggregating, a period less than three months then a revocation time does not need to be determined by the court. This is because if the new offence is considered to be trivial, returning the person to prison to serve the balance of the outstanding sentence is not warranted. Instead the person would continue to be subject to the parole order.
316. Proposed subsection 19AQ(2) operates in the same way to proposed subsection 19AQ(1), but applies to licences instead of parole orders.
317. Proposed subsection 19AQ(3) ensures that the revocation time determined by the court is linked to commission of the offence. Paragraphs 19AQ(3)(b) and (c) allow a determination to be made even if the court cannot state definitively when the new offence was committed or where the offence formed part of an ongoing course of conduct (for example, conspiracy situations).
318. Proposed subsection 19AQ(4) outlines the amount of time a person is liable to serve in respect of the outstanding sentence that was the subject of the parole order or licence. This may be either the entire balance of the outstanding sentence (as provided by paragraph 19AQ(4)(a)) from the date of their release on parole or licence to the end of the parole or licence period or, if the court considers it appropriate having regard to the person's good behaviour, that period reduced by the period of "clean street time" (as provided by proposed paragraph 19AQ(4)(b)). This is achieved by deducting the period from the date of release to the date of revocation from the balance of the outstanding sentence.
319. Proposed subsection 19AQ(5) mirrors the existing subsection 19AQ(6) and provides that revocation under this section does not occur where the new sentence imposed is a suspended sentence.
Item 6 - Section 19AR (heading)
320. This item is a consequential amendment to item 5 and ensures that the heading to section 19AR remains accurate following the change from revocation automatic on sentencing for a new offence to revocation occurring at a time determined by the court.
Item 7 - Subsections 19AR(1) and (2)
321. This item repeals the existing subsections 19AR(1) and (2) and substitutes a new subsection 19AR(1) which removes the option previously available to the courts of setting a recognizance release order if a person had their parole or licence revoked under section 19AQ.
322. The proposed subsection 19AR(1) applies to a person serving a federal sentence who is later sentenced to another term of imprisonment for a federal offence. In this instance, the court imposing the new federal sentence must fix a single new non-parole period in respect of both the new sentence and the outstanding sentence, having regard to the total period of imprisonment that the person is liable to serve. The court is not required to fix a non-parole period if the circumstances in subsection 19AR(4) apply (see item 9 of this Schedule).
Item 8 - Subsection 19AR(3)
323. This item repeals the existing subsection 19AR(3) of the Crimes Act and substitutes a new subsection which removes the option previously available to the courts of setting a recognizance release order if a person had their parole or licence revoked under section 19AQ of the Crimes Act.
324. The proposed subsection 19AR(3) applies to a person serving a federal sentence who is later sentenced to another term of imprisonment for a state or territory offence. In this instance, the court imposing the new state or territory sentence must fix a single new non-parole period in respect of the outstanding Commonwealth sentence, having regard to the total period of imprisonment that the person is liable to serve. The court is not required to fix a non-parole period if the circumstances in subsection 19AR(4) apply (see item 9 of this Schedule).
Item 9 - Subsection 19AR(4)
325. This item repeals the existing subsection 19AR(4) of the Crimes Act and substitutes a new subsection which mirrors the existing provision but includes an additional instance where the court may decline to fix a non-parole period.
326. Paragraph 19AR(4)(b) provides that the court may decline to fix a non-parole period if the person is expected to be serving a state or territory sentence on the day after the end of the federal sentence. This is because it is meaningless to set a non-parole period for the outstanding sentence if a person could not be released from custody to be under supervision in the community because they must continue to serve a state or territory sentence on which they are not yet eligible for release.
Items 10 - 14 - Subsections 19AR(5), 19AR(6), 19AR(7)
327. These items are necessary because it will no longer be possible to make a recognizance release order under section 19AR of the Crimes Act.
Item 15 - Subsection 19AS(1)
328. This item is a consequential amendment to item 5, which moves away from automatic revocation because of the imposition of a new sentence to court directed revocation. It repeals the existing subsection 19AS(1) of the Crimes Act and substitutes a new subsection to reflect the changes proposed to section 19AQ of the Crimes Act. It does not impact the operation of section 19AS.
Item 16 - Subsection 19AS(2)
329. This item is a consequential amendment to item 15 of this Schedule which restructures subsection 19AS(1) of the Crimes Act.
Item 17 - Paragraphs 19AT(1)(a) and (b)
330. This item is a consequential amendment to item 5, which moves away from automatic revocation because of the imposition of a new sentence to court directed revocation. It repeals the existing paragraphs 19AT(1)(a) and (b) of the Crimes Act and substitutes a new subsection to reflect the changes proposed to section 19AQ. It does not impact the operation of section 19AT.
Item 18 - Subsection 19AW(2)
331. This item amends subsection 19AW(2) of the Crimes Act so that if a prescribed authority cannot complete the hearing immediately and issue a warrant for detention then they must issue a warrant for the person to be remanded into custody pending completion of the hearing. As the person's parole order or licence has been revoked, they no longer have legal authority to be in the community and must be returned to prison to continue serving their sentence. This previously was left to the discretion of the court.
Item 19 - Paragraph 19AW(3)(a)
332. This item amends paragraph 19AW(3)(a) of the Crimes Act to make it clear that the prescribed authority can only decline to fix a non-parole period if it is inappropriate to do so because of the serious nature of the breach of conditions that led to the revocation of the order or licence. This will ensure that paragraph 19AW(3)(a) is not read-down and used to avoid setting a custodial sentence.
Item 20 - Subsection 20(6)
333. This is a consequential amendment to items 7 and 8 that is necessary as it is no longer possible for the court to set a recognizance release order under section 19AR of the Crimes Act.
Item 21 - Application provisions
334. This item sets out the application provisions for Schedule 13.
335. Subitem 21(1) provides that the proposed amendments in items 1, 4, 5 and 7-17 of this Schedule apply in relation to the revocation, on or after the commencement of this schedule, of a parole order or licence relating to a sentence imposed on a person before, on or after the commencement of this schedule.
336. Subitem 21(2) provides that the proposed amendment in item 2 applies in relation to fixing, on or after the commencement of this Schedule, a non-parole period in respect of a sentence. These amendments will apply whether that sentence was imposed before, on or after the commencement of this Schedule.
337. Subitem 21(3) provides that the proposed amendments in items 18 and 19 of this Schedule apply in relation to hearings begun on or after the commencement of this Schedule (whether the order revoking the relevant parole order or licence was made before, on or after that commencement).
338. The application of the proposed amendments in this manner is justified as it relates to the revocation of a parole order or licence after the commencement of the Schedule. The proposed amendments are also reasonable and necessary to ensure the continued protection of the community and that breaches of a parole order, or release on licence, are adequately punished where appropriate.