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Last Updated: 8 February 2008

List of Subheadings:

Release on Parole or Licence Under the Crimes Act 1914 (Cth)
- Parole Decisions
---Procedural Fairness
- Parole for Longer than 3 Years but Less than 10 Years
- Parole for Life Sentences or Sentences Longer than 10 Years
- Release on Licence
- Length of Parole or Licence Period
- Supervision Orders
- Parole or Licence Conditions
--- Amending Parole Conditions
--- Amending Licence Conditions
Federal Offenders also Serving a State or Territory Sentence
Review of Parole Decisions
Revocation of Parole of Licence
- Automatic Revocation
--- Remissions
--- Fixing a Non Parole Period Where Parole or Licence Automatically Revoked
--- Where Subsequent Conviction is Appealed or Quashed
- Discretionary Revocation
--- Arrest, Summons and Warrants
--- Right of Appeal
--- Fixing a Non Parole Period

Commentary on Release on Parole or Licence Under the Crimes Act 1914 (Cth)

The Crimes Act 1914 (Cth) contains provisions governing the release of federal offenders on parole or licence. These are found in ss 19AL - 19AZC.

Federal prisoners may also be released temporarily under the provisions relating to leave of absence and pre-release shemes: s 19AZD. (See Pre-Release Schemes)

On application to the Attorney-General, release on licence may occur at at any time during the offender's sentence of imprisonment if exceptional circumstances exist to justify the granting of the licence: s 19AP.

While released on parole/licence, offenders are deemed to still be under sentence and not to have served any part of the sentence that remained to be served at the beginning of the parole/licence period: s 19AZC(1)(a). This must be read in light of s 19AA(2), which applies State and Territory for reduction of the sentence remaining to federal offenders. [1]

If the parole/licence period is served in full without the parole order or licence being revoked, the person is taken to have served all of the sentence that remained to be served at the beginning of the parole/licence period: s 19AZC(1)(b).

The revocation of a previous parole order or licence is no bar to the granting of a parole order or licence in relation to the same offence: s 19AZB. [2]

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parole decisions

A federal offender may be released on parole by the Attorney-General at the end of the fixed non-parole period: s 19AL.

The power to make parole decisions in relation to federal offenders lies with the Attorney-General. Decisions about parole, and the setting of conditions of release, may also be made by the Minister for Justice and Customs, [3] or delegated to senior officers of the Attorney-General's Department. [4]

A federal Parole Panel has been established to assist in complex cases, however the function of the Panel is merely recommendatory. [5]

The Crimes Act 1914 (Cth) does not prescribe any criteria to be considered in relation to decision making about release on parole.

Procedural Fairness

The s 19AL power must be exercised with procedural fairness: Duxerty v Minister for Justice and Customs [2002] FCA 1518, 22.

In Butler v Queensland Community Corrections Board, the Supreme Court of Queensland Court of Appeal stated in relation to decisions about parole at the State level:

Procedural fairness in respect of a parole application requires that an applicant's attention be drawn to the main issues or factors militating against success, so that an adequate opportunity is afforded to deal with them. [6]

Butler was cited with approval by the Federal Court of Australia in Duxerty. [7]

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Parole for Sentences Longer Than 3 Years but Less Than 10 Years

Section 19AL(1) applies where a non-parole period has been fixed in relation to an offender serving a federal sentence of, or federal sentences aggregating, more than 3 years but less than 10 years imprisonment.

In these circumstances, release on parole is automatic (subject to s 19AM: see below).

Where a non-parole period has been fixed in relation to the sentence or sentences, the Attorney-General must direct that the person be released from prison on parole:

• at the end of the non-parole period: s 19AL(1)(a); or
• if the Attorney-General considers it appropriate to do so, on a specified day not earlier than 30 days before the end of the non-parole period: s 19AL(1)(b).

Any such order must be made in writing: s 19AL(1).

The application of s 19AL(1) to offenders still serving a State or Territory sentence at the expiration of the federal sentence is limited by s 19AM: see below.

A person may be released on parole if, and only if, the person indicates, in writing, his or her acceptance of the conditions on which the order is made. Such acceptance must be made on the original parole order, or on a copy of that order: s 19AL(5).

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Section 19AL(2) applies where a non-parole period has been fixed in relation to an offender serving:

• a federal life sentence; or
• a federal sentence of 10 years or more; or
• federal sentences aggregating 10 years or more.

In these circumstances, release on parole is not automatic. The discretion to release lies with the Attorney-General.

Where a non-parole period has been fixed in relation to the sentence or sentences, the Attorney-General must either:

• direct that the person be released from prison on parole at the end of the non-parole period: s 19AL(2)(a)(i); or
• if the Attorney General considers it appropriate to do so, direct that the person be released from prison on parole on a specified day not earlier than 30 days before the end of the non-parole period: s 19AL(2)(a)(ii); or
• direct that the person is not to be released on parole at, or at any time before, the end of the non-parole period: s 19AL(2)(b).

Any such order must be made in writing: s 19AL(2).

Note: An order under s 19AL(2)(b) that a person is not to be released on parole at, or at any time before, the end of the non-parole period must:

• not be made later than 3 months before the end of the non-parole period: s 19AL(3)(a); and
• include a statement of reasons why the order was made: s 19AL(3)(b); and
• indicate when, if the Attorney-General intends to do so, the Attorney-General proposes to reconsider the question of release of the person on parole at a later time: s 19AL(3)(c).

Any such order must be made in writing and a copy of the order given to the person within 14 days after it was made: s 19AL(3).

The application of s 19AL(2) to offenders still serving a State or Territory sentence at the expiration of the federal sentence is limited by s 19AM: see below.

A person may be released on parole if, and only if, the person indicates, in writing, his or her acceptance of the conditions on which the order is made. Such acceptance must be made on the original parole order, or on a copy of that order: s 19AL(5).

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Release on Licence

Any person serving a federal sentence may, at the discretion of the Attorney-General, be released from prison on licence whether or not a non-parole period has been fixed or a recognizance release order made: s 19AP(1).

A prisoner, or a person acting on the prisoner's behalf, must apply to the Attorney-General in writing for release on licence, stating the exceptional circumstances which exist to justify the grant of the licence: s 19AP(3).

The Attorney-General must not release a prisoner on licence unless the Attorney- General is satisfied that exceptional circumstances exist to justify the release: s 19AP(4).

The Crimes Act 1914 (Cth) is silent on the definition of 'exceptional circumstances'. The Explanatory Memorandum explaining s 19AP(3) 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. Such matters as, for example, excellent conduct in prison, remorse or contrition, liability to deportation, prospects of employment, or family hardship, unless of an extreme kind that is documented by medical and other reports, would not normally constitute exceptional circumstances. [8]

A licence directing that the offender be released from prison is sufficient authority for the release: s 19AP(10).

Note: the Attorney-General is permitted to refuse to consider an application for release on licence if a previous application has been made within the past year in respect of the offender: s 19AP(5).

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A parole order must specify the date on which the parole period ends: s 19AL(4).

A licence must specify the date on which the licence ends: s 19AP(6).

Sentence Other Than a Federal Life Sentence

In relation to a person not serving a federal life sentence, the parole or licence period ends:

• on the last day of the federal sentence being served, or to be served, if that day occurs earlier than 5 years after the day of release on parole or licence; or
• 5 years after the day of release on parole or licence : see s 16(1).

A Federal Life Sentence

In relation to a person serving a federal life sentence, the parole or licence period must not end earlier than five years after the person is released on parole or licence: s 19AL(4)(a); s 19AP(6)(a).

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Supervision orders

Where it is proposed that, for any part of the parole or licence period, the person should be subject to supervision, the parole order or licence must specify the date on which the supervision period ends: s 19AL(4)(b); s 19AP(6)(4)(b).

The length of any supervision period is to be calculated in accordance with the definition of supervision period contained in s 16(1).

In relation to federal offenders not serving a sentence of life imprisonment, the maximum period of supervision is three years: s 16.

In relation to offenders serving a sentence of life imprisonment, there is no maximum period of supervision: s 16.

Supervision of federal offenders on parole or licence is by State or Territory officers who have been authorised in accordance with s 21F.

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Parole or Licence Conditions

A parole order or release on licence is made subject to:

• a condition that the offender must be of good behaviour and not violate any law during the period of parole or the period of release on licence: s 19AN(1)(a)/ s 19AP(7)(a); and
• a condition that an offender, where the offender is subject to a supervision order, obey all reasonable directions of the supervising officer or person: s 19AN(1)(b)/ s 19AP(7)(b); and
• any other conditions (if any) that the Attorney-General specifies: s 19AN(1)(c)/ s 19AP(7)(c).

Amending Parole Conditions

Under s 19AN(2), at any time before the expiration of the parole period, the Attorney-General may:

• vary a condition in the parole order; or
• revoke a condition in the parole order; or
• impose additional conditions in the parole order.

Any such amendment must be made in writing. An amendment does not have effect until notice in writing is given to the offender before the end of the parole period: s 19AN(3).

Amending Licence Conditions

Under s 19AP(8), at any time before the expiration of the licence period, the Attorney-General may:

• vary a condition in the licence; and/or
• revoke a condition in the licence; and/or
• impose additional conditions in the licence.

Any such amendment must be made in writing. An amendment does not have effect until notice in writing is given to the offender before the end of the licence period: s 19AP(9).

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Federal Offenders also Serving a State or Territory Sentence

Section 19AM applies to offenders who are due for federal parole but are also serving State or Territory sentences.

The effect of s 19AM can be that a federal prisoner may have served a complete non-parole period and be subject to an order of release on parole by the Attorney-General in relation to that federal sentence, but will remain in custody until the complete State or Territory sentence has been served. [9]

The table below outlines the provisions that apply to such persons:

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Review of Parole or Licence Decisions

Merits review of parole order and licence decisions is not available. Judicial review of decisions in relation to release on parole or licence is available under the Administrative Decisions (Judicial Review) Act 1977 (Cth). [10]

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Revocation of Parole or Licence

A federal parole order or licence may be revoked:

• automatically when a further sentence is imposed following the commission of an offence by the parolee/licencee during the parole/licence period: s 19AQ (see below); or
• at the discretion of the Attorney-General, following failure of the parolee/licencee to comply with conditions of the parole order or licence: s 19AU (see below).

Following revocation, a federal offender will receive a reduction in the sentence to be served for time spent in the community on parole or licence if so provided for in State or Territory legislation: s 19AA(2).

automatic revocation

Under s 19AQ a federal parole order (subs 1) or licence (subs 3) is automatically revoked where a federal offender:

• is released on parole or licence; and
• commits a federal, State or Territory offence during the parole or licence period; and
• is sentenced to imprisonment of more than 3 months in respect of that further offence.

These provisions do not apply if the further sentence is a suspended sentence: s 19AQ(6).

Note: if at the time of imposition of the sentence the federal parole/licence period has already ended, the parole order/licence is to be taken to have been revoked as from the time immediately before the end of the parole/licence period: s 19AQ(2) (parole) or s 19AQ(4) (licence). See also DPP (Cth) v WJB [2000] SASC 364.

Where a parole order or licence is revoked, the offender is to serve the balance of the sentence which had not been served at the time that the offender was released on parole or licence (subject to remissions: see below): s 19AQ(5).

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Issuing Warrants of Detention

A court sentencing a federal parolee/licencee for a State or Territory offence committed during the period of federal parole/licence must apply s 19AS.

Section 19AS(1) applies to a federal offender who:

• is released on parole or licence under the Crimes Act 1914 (Cth); and
• has their parole order or licence revoked under s 19AQ.

Where s 19AS(1) applies to an offender:

• the parole order or licence is taken to have been revoked: s 19AS(1)(b)(i); and
• the offender is liable to serve the balance of the federal sentence remaining to be served at the time at which they were released on parole or licence: s 19AS(1)(b)(ii).

The court imposing the sentence for the State or Territory offence must issue a warrant authorising the offender to be detained in prison for the unserved part of the federal sentence: s 19AS(1)(c).

The offender must begin to serve the balance of the federal sentence on the same day that the State or Territory sentence is imposed: s 19AS(1)(d).

The balance of the federal sentence is to be served in the State or Territory in which the State or Territory sentence is imposed: s 19AS(1)(e).

Note: where the court fails to issue the required warrant under s 19AS(1)(c), the DPP may apply to that court for such a warrant: s 19AS(2).

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Fixing a Non-Parole Period Where Parole or Licence Automatically Revoked

The fixing of a non-parole period for a federal offender who has had their parole order or licence revoked is determined as follows:

• s 19AR(1) applies where a federal offender released on parole or licence is sentenced to life imprisonment or imprisonment of a term of more than three years in respect of a federal offence committed during the parole/licence period ;
  
• s 19AR(2) applies where a federal offender released on parole or licence is sentenced to a term of three years or less for a federal offence committed during the parole/licence period;
  
• s 19AR(3) applies where a federal offender released on parole or licence is sentenced to a term of imprisonment in respect of a State or Territory offence committed during the parole/licence period.

Notwithstanding the above, the court retains the discretion to not fix a non-parole period if, with regard to the nature and circumstances of the offence concerned and to the antecedents of the offender, it is not appropriate to do so: s 19AR(4).

If a non-parole period is not fixed, the court must state the reasons it declined to do so and enter those reasons into the records of the court: s 19AR(5).

Note: By the operation of s 19AR(6):

• a court is not prevented from fixing a non-parole period in respect of the sentence imposed for the offence merely because the offender is, or may be, liable to be deported from Australia: s 19AK; and
• a court may not fix a single non-parole period in respect of both federal sentences of imprisonment and state sentences of imprisonment: s 19AJ; and
• the non parole period, for sentences other than for life imprisonment, must not end later than the end of the sentence: s 19AF.

Under s 19AH(1), failure to comply fully with this Act in respect to fixing non-parole periods or making recognizance release orders does not affect the validity of the sentence: s 19AR(7).

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Reductions

Where a parole order or licence is revoked, the offender is to serve the balance of the sentence which had not been served at the time that the offender was released on parole or licence. This is subject to relevant State or Territory law regarding remissions: s 19AQ(5).

A federal offender will receive a reduction in the sentence to be served for time spent in the community on parole or licence if so provided for in State or Territory legislation: s 19AA(2).

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Where Subsequent Conviction is Appealed or Quashed

Section 19AT contains detailed provisions about the procedure the court must follow where the offender appeals the conviction which has given rise to the new sentence.

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discretionary revocation

Under s 19AU(1) the Attorney-General may, in writing, revoke a parole order or licence at any time before the end of the parole/licence period:

• if the offender has, during that period, failed to comply with a condition of the order or licence: s 19AU(1)(a); or
• if there are reasonable grounds for suspecting that the offender has, during that period, failed to comply: s 19AU(1)(b).

The instrument of revocation must specify the condition that was breached or is suspected of having been breached: s 19AU(1).

Before revoking the parole order or licence, the Attorney-General must:

• notify the person of the condition alleged to have been breached: s 19AU(2)(a); and
• allow the person 14 days to provide written reasons why the parole order or licence should not be revoked: s 19AU(2)(b).

Note: the Attorney-General need not provide written notice before revoking the parole order or licence where:

• the person's whereabouts are, after reasonable inquiries, unknown: s 19AU(3)(a); or
• there are circumstances of urgency which require the parole order or licence to be revoked without giving notice: s 19AU(3)(b); or
• the person has left Australia: s 19AU(3)(c); or
• in the opinion of the Attorney-General it is necessary, in the interests of the administration of justice, to revoke the parole order or licence without giving notice: s 19AU(3)(d).

Arrest, Summons and Warrants

Section 19AV details procedure relating to the arrest of a person whose parole order or licence has been revoked by the Attorney-General.

Section 19AW details procedure relating to the issuing of a warrant of detention in relation to a person whose parole order or licence has been revoked by the Attorney-General and who received due notification of the revocation.

Section 19AX contain detailed provisions about the issuing of warrants and the arrest of any person whose parole order or licence has been revoked by the Attorney-General and who was not notified of the revocation.

Section 19AZ(1)-(2) provide magistrates with the power to take evidence on oath, to administer the oath, to summon witnesses, and to order the production of documents or articles. Section 19AZ(3) applies State or Territory law in relation to serving a summons under the section.

Penalties relating to disobedience of summons are found in s 19AZA.

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Right of Appeal

Where a warrant for imprisonment is issued pursuant to s 19AW(1) or s 19AX, the person may appeal to the Supreme Court of the State or Territory in which the person was arrested against:

• the issue of the warrant: s 19AY(1)(a); or
• the calculation, for the purposes of the warrant, of the unserved part of any outstanding sentence: s 19AY(1)(b); or
• the fixing, for the purposes of the warrant, of a non-parole period or the refusal to fix such a period: s 19AY(1)(c).

Procedural details that apply to the appeal hearing are contained in s 19AY(2) - s 19AY(7).

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Fixing a Non Parole Period

The non-parole period must be fixed and contained in the issued warrant of imprisonment: s 19AW(1)(f).

Notwithstanding the above, a non-parole period is not required to be fixed where:

• it is inappropriate to do so because of the nature of the breach of the conditions of the order or licence: s 19AW(3)(a); or
• the unserved part of the outstanding sentence is 3 months or less: s 19AW(3)(b).

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Footnotes

[1] Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) 33.

[2] Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) 33.

[3] Duxerty v Minister for Justice and Customs [2002] FCA 1518; see also Attorney General Department's website at www.ag.gov.au/www/agd/agd.nsf/Page/Federal_Offenders.

[4] The authority for delegation is found in the Law Officers Act 1964 (Cth) s 17(2). See also Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [23.3].

[5] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [23.3].

[6] [2001] QCA 323, 19 (Byrne J).

[7] Duxerty v Minister for Justice and Customs [2002] FCA 1518, [22].

[8] Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) 23.

[9] R v Cockrell; Ex Parte Cth DPP [2005] QCA 59, 17 (Jerrard JA).

[10] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [23.49]. See also Cornwell v Attorney-General (Cth) (1993) 45 FCR 492; Duxerty v Minister for Justice and Customs [2002] FCA 1518