An Act to promote truth in sentencing; to provide for the procedure to be followed in sentencing prisoners to imprisonment and for the release of prisoners on parole; to repeal the Probation and Parole Act 1983 and amend certain other Acts; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Sentencing Act 1989.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Objects of Act
The objects of this Act are:(a) to promote truth in sentencing by requiring convicted offenders to serve in prison (without any reduction) the minimum or fixed term of imprisonment set by the court, and(b) to provide that prisoners who have served their minimum terms of imprisonment may be considered for release on parole for the residue of their sentences.
4 Definitions
(1) In this Act:additional term means an additional term set under Part 2.Board means the Parole Board constituted by this Act.court includes a Judge, Magistrate and Justice.existing licence means a licence to be at large:(a) granted under section 463 of the Crimes Act 1900 before 12 January 1990 (being the day on which that section was repealed), and(b) which was still in force immediately before the commencement of Schedule 1 (2) to the Prisons (Amendment) Act 1993.fixed term means a fixed term set under Part 2.licensee means a person holding an existing licence.minimum term means a minimum term set under Part 2.parole order means an order made under this Act directing the release of a prisoner on parole.Review Council means the Serious Offenders Review Council constituted by section 60 of the Prisons Act 1952.serious offender has the same meaning as in Part 10 of the Prisons Act 1952.(2) In this Act, a reference to a sentence of imprisonment to which a person is subject includes a reference to a sentence which has been imposed but which has not yet commenced.(3) In this Act, a reference to a minimum or additional term or a fixed term is, if the term has been varied under the Prisons Act 1952 or the Children (Detention Centres) Act 1987 for a breach of discipline, a reference to the term as so varied.(4) In this Act:(a) a reference to a function includes a reference to a power, authority and duty, and(b) a reference to the exercise of a function includes, if the function is a duty, a reference to the performance of the duty.s 4: Am 1993 No 90, Sch 1 (1); 1996 No 144, Sch 1 (1); 1999 No 94, Sch 4.159 [1].
Part 2 Sentencing
5 Minimum and additional terms
(1) When sentencing a person to imprisonment for an offence, a court is required:(a) firstly, to set a minimum term of imprisonment that the person must serve for the offence, and(b) secondly, to set an additional term during which the person may be released on parole.(2) The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances.(3) If a court sets an additional term that exceeds one-third of the minimum term, the court is required to state the reason for that decision.(4) The minimum and additional terms set for an offence together comprise, for the purposes of any law, the term of the sentence of the court for the offence.
6 Fixed terms: alternative to minimum and additional terms
(1) When sentencing a person to imprisonment for an offence, a court may decline to set minimum and additional terms for the offence and may set instead a fixed term of imprisonment that the person must serve for the offence.(2) A court may decline to set minimum and additional terms for a person if it appears to the court that it is appropriate to set a fixed term:(a) because of the nature of the offence or the antecedent character of the person, or(b) because of other sentences already imposed on the person, or(c) for any other reason that the court considers sufficient.(3) A court is required to state the reason for its decision to set a fixed term instead of minimum and additional terms.
7 Fixed terms: sentences of 6 months or less
(1) A court may not set minimum and additional terms for an offence if they would together not exceed 6 months.(2) In that case, the court is required to set a fixed term of imprisonment not exceeding 6 months that the person must serve for the offence.
8 Information about minimum or fixed term
(1) When setting a minimum or fixed term, a court is required to specify the day on which the term commences or commenced and the day on which the prisoner will be eligible to be released from prison or on parole.(2) If the prisoner is sentenced to more than one term of imprisonment or is already subject to a term of imprisonment, the court is required to specify the earliest day on which the prisoner would be eligible to be released from prison or on parole.(3) In specifying a day under this section, the court may rely on the information then available to the court.(4) The purpose of this section is to require the court to give information about the likely effect of a sentence.
9 Cumulative sentences
(1) If a court imposes a further sentence of imprisonment which is to be cumulative on a previous sentence imposed by the court or to which the person is subject (being a previous sentence which has a minimum term), the further sentence must commence at the end of the minimum term of the previous sentence.(2) If there is more than one previous sentence which has a minimum term, the further sentence must commence at the end of the minimum term that last expires.(3) If the further sentence is imposed during the additional term for the previous sentence or during the additional term that last expires, the further sentence must commence on the day it is imposed or on an earlier day specified by the court.(4) If a court imposes a further sentence that does not comply with this section, the further sentence is to be taken to commence at the time required by this section.(5) This section has effect despite section 444 of the Crimes Act 1900 or any other law.(6) Otherwise, this section does not affect any law relating to the time when a sentence commences or commenced, or comes to an end, or any power of a court to direct that a sentence is to commence at the expiration of another sentence.(7) A reference in this section to a further sentence includes a reference to a sentence excluded from this Part by section 13.
10 Restriction on setting minimum and additional terms
The minimum and additional terms set by a court for an offence:(a) must together not exceed the maximum period of imprisonment that may be imposed for the offence, and(b) must together not be less than any minimum period of imprisonment that must be imposed for the offence.
11 Powers on appeal
(1) If an appeal is made against a conviction or sentence, the court determining the appeal may:(a) vary any minimum and additional terms, or(b) rescind any minimum and additional terms and set a fixed term instead, or(c) rescind any fixed term and set minimum and additional terms instead.(2) Any term as varied or set under this section must comply with this Part.(3) This section does not limit any other power of a court in determining an appeal.
12 Operation of this Part
(1) When sentencing a person to more than one term of imprisonment, a court must set minimum and additional terms, or a fixed term, for each sentence.(2) A minimum or additional term, or fixed term, set for an offence is not revoked or varied by a later such term set for another offence.
13 Exclusions from this Part
This Part does not apply to the sentencing of a person:(a) (Repealed)(b) to imprisonment in default of payment of any fine or penalty, or(c) to imprisonment for life or for any other indeterminate period, or(d) to detention in strict custody under section 25 or 39 of the Mental Health (Criminal Procedure) Act 1990, or(e) to imprisonment under the Habitual Criminals Act 1957.s 13: Am 1990 No 11, Sch 2; 1998 No 43, Sch 3 [1].
13A Existing life sentences
(1) In this section:existing life sentence means a sentence of imprisonment for life imposed before or after the commencement of this section, but does not include a sentence for the term of a person’s natural life under section 19A of the Crimes Act 1900 or section 33A of the Drug Misuse and Trafficking Act 1985.non-release recommendation, in relation to a person serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the original sentencing court that (or to the effect that) the person should never be released from imprisonment.(2) A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence.(3) A person is not eligible to make such an application unless the person has served:(a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or(b) at least 20 years of the sentence concerned, if the person was the subject of a non-release recommendation.(3A) A person who is the subject of a non-release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when considering the person’s application under this section, is satisfied that special reasons exist that justify making the determination.(4) The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence:(a) set both:(i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed, and(ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person’s natural life), or(b) decline to determine a minimum term and an additional term.(4A) In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court).(5) A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced.(6) If the Supreme Court sets a minimum term and an additional term under this section, the sentence comprising those terms replaces the original sentence of imprisonment for life.(7) A minimum term and an additional term set under this section are to be taken to have been set under this Part but are not required to comply with the other provisions of this Part.(8) If the Supreme Court declines to determine a minimum term and an additional term, the Court may (when making that decision) direct that the person who made the application:(a) never re-apply to the Court under this section, or(b) not re-apply to the Court under this section for a specified period.(8A) If the Court gives a direction under subsection (8) that a person may never re-apply to the Court under this section, the person is to serve the existing life sentence for the term of the person’s natural life.(8B) If the Court does not give a direction under subsection (8), the person may not re-apply within the period of 3 years from the date of the Court’s decision to decline to determine a minimum term and an additional term.(8C) A direction under subsection (8) that a person may never re-apply to the Court under this section or not re-apply for a period exceeding 3 years may be given only if:(a) the person was sentenced for the crime of murder, and(b) it is a most serious case of murder and it is in the public interest that the determination be made.(9) The Supreme Court, in exercising its functions under this section, is to have regard to:(a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences, and(b) any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person’s rehabilitation), being in either case reports made available to the Supreme Court, and(c) the need to preserve the safety of the community, andand may have regard to any other relevant matter.(d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application),(10) The regulations may make provision for or with respect to reports referred to in subsection (9), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court.(10A) The Supreme Court, in exercising its functions under this section:(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned, and(b) must give consideration to adopting or giving effect to their substance and the intention of the original sentencing court when making them, and(c) must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so.(11) The Supreme Court may make a determination for a minimum term and an additional term for a sentence even though the Court was not the sentencing court, or the Court is not constituted in the same way as it was when the applicant was sentenced.(12) An appeal lies to the Court of Criminal Appeal in relation to:(a) the determination of a minimum term and an additional term under this section, or(b) a decision to decline to make such a determination, or(c) a direction that a person may never re-apply for such a determination or not re-apply for a period exceeding 3 years.The Criminal Appeal Act 1912 applies to such an appeal in the same way as it applies to an appeal against a sentence.(13) The reference in subsection (4A) to an offence of which a person has been convicted:(a) includes:(i) a finding that an offence has been proved without proceeding to a conviction against the person, or(ii) any offence taken into account when sentence was passed against the person, but(b) does not include:(i) an offence that has been quashed or set aside within the meaning of Part 4 of the Criminal Records Act 1991, or(ii) an offence of a class or description prescribed by the regulations for the purposes of this paragraph.s 13A: Ins 1989 No 220, Sch 1 (1). Am 1993 No 74, Sch 1 (1)–(4); 1993 No 90, Sch 1 (2); 1994 No 32, Sch 2; 1997 No 6, Sch 1 [1]–[9].
Part 3 Parole
Division 1 Release on parole
14 Eligibility for release on parole
(1) Prisoners may be released on parole in accordance with this Act.(2) A prisoner is eligible for release on parole only if:(a) the prisoner is subject to at least one sentence of imprisonment that has a minimum term, and(b) the prisoner has served each such minimum term and is not subject to any other sentence of imprisonment that does not have a minimum term.(3) Nothing in this Act authorises the release of a prisoner who is required to be kept in prison in relation to an offence against a law of the Commonwealth.
15 Parole order necessary for release
A prisoner eligible for release on parole is entitled to be released on parole only if a parole order directing the release of the prisoner has been made and takes effect.
Division 2 Parole orders—sentences of more than 3 years
Subdivision 1 General
pt 3, div 2, sdiv 1, hdg: Ins 1996 No 144, Sch 1 (2).
16 Application of this Division
This Division applies to the making of a parole order in respect of a sentence of imprisonment of more than 3 years that has a minimum term.
17 General duty of the Board
(1) The Board may not make a parole order for a prisoner unless the Board has:(a) determined that the release of the prisoner is appropriate, having regard to the principle that the public interest is of primary importance, and(b) considered relevant comments (if any) made by the court when sentencing the prisoner, and(c) considered any reports required by regulations made for the purposes of this section to be furnished to it, and(d) taken into account the antecedents of the prisoner and any special circumstances of the case, and(e) determined that it has sufficient reason to believe that the prisoner, if released from custody, would be able to adapt to normal lawful community life, and(f) considered any other relevant matter.(2) In making a decision under this section, the Board is not to take into account whether a prisoner, if released on parole, may become liable to be deported.
Subdivision 2 Prisoners other than serious offenders
pt 3, div 2, sdiv 2, hdg: Ins 1996 No 144, Sch 1 (3).
17A Application of this Subdivision
This Subdivision applies only to prisoners who are not serious offenders.s 17A: Ins 1996 No 144, Sch 1 (3).
18 Consideration by the Board
(1) The Board is required to consider whether a prisoner should be released on parole:(a) at least 60 days before the day on which the prisoner becomes eligible for release on parole, and(b) if the prisoner has not been released on parole on or after that day—within each successive year following that day if the prisoner is then eligible for release on parole, and(c) if the prisoner has been released on parole on or after that day but the parole order has been revoked and a further parole order has not been made for the prisoner after that revocation—within each successive year following that revocation if the prisoner is then eligible for release on parole.(2) Despite subsection (1) (a), the Board may defer consideration of its decision to a day less than 60 days (but not less than 21 days) before the day on which the prisoner becomes eligible for release on parole if it is of the opinion that it is unable to make a decision because it has not been furnished with a report required to be made to it or there are other relevant matters requiring further consideration.(3) Despite subsection (1) (c), the Board is not required to consider whether the person concerned should be released on parole until the person is returned to the prison system following revocation of the parole order. If the person is at large for the whole of one or more years following the revocation, the Board may decline to consider its decision at all in relation to that year or those years.(4) Despite the above provisions of this section, the Board may decline to consider the case of a prisoner for up to but not exceeding 3 years at a time after it last considered the grant of parole to the prisoner under this Division.s 18: Am 1993 No 90, Sch 1 (3); 1996 No 144, Sch 1 (4).
19 Decision of the Board about release on parole
Immediately following consideration of whether a prisoner should be released on parole, the Board is required:(a) to make an order directing the release of the prisoner on parole on the day on which the prisoner becomes eligible for release on parole or, if that day has passed, at a specified time occurring not later than 7 days after the order is made, or(b) to cause the prisoner to be advised, by a written notice served on the prisoner, that the Board does not intend to make a parole order.s 19: Am 1993 No 90, Sch 1 (4).
19A (Repealed)
s 19A: Ins 1993 No 90, Sch 1 (5). Rep 1996 No 144, Sch 1 (5).
20 Notice of refusal of parole
A notice that the Board does not intend to make a parole order must:(a) set a date (occurring as soon as practicable, but not earlier than 14 days, after the date on which the notice is served) on which the Board will meet for the purpose of reconsidering whether the prisoner should be released on parole, and(b) require the prisoner to notify the Secretary of the Board, not later than 7 days before the date set, if the prisoner intends to make representations to the Board about being released on parole, and(c) except as provided by section 49, be accompanied by copies of the reports and other documents intended to be used by the Board in deciding whether the prisoner should be released on parole, and(d) be in a form approved by the Board.
21 Review by the Board
(1) If a notice is served on a prisoner under section 20 and the prisoner has duly notified the Secretary of the Board that the prisoner intends to make representations to the Board, the Chairperson of the Board shall convene a meeting of the Board, on the date set by the notice, to conduct a hearing for the purpose of reconsidering whether the prisoner should be released on parole.(2) At that hearing, or at a hearing conducted at a subsequent meeting (which shall, where practicable, be held before the prisoner is eligible for release on parole) the prisoner may make submissions to the Board with respect to being released on parole.s 21: Am 1996 No 144, Sch 1 (6) (7).
22 Decision after review
(1) At a hearing conducted under section 21, the Board shall, after reviewing all the reports, documents and other information placed before it, decide whether or not the prisoner should be released on parole or whether, for reasons specified by the Board in its minutes, the making of that decision should be deferred.(2) The making of a decision, deferred by the Board under this section:(a) may be deferred once only, and(b) may not be deferred for more than 2 months.(3) If, under this section, the Board decides that a prisoner should be released on parole, the Board shall make an order directing the release of the prisoner on parole on the day on which the prisoner becomes eligible for release on parole or, if that day has passed, at a specified time occurring not later than 7 days after the order is made.(4) If, under this section, the Board decides that a prisoner should not be released on parole or defers making a decision, the Board is required:(a) to cause the reason for the decision or deferral to be recorded in the minutes of the Board, and(b) to cause the prisoner to be advised, by notice in writing served on the prisoner, of the decision or deferral and the reason for the decision or deferral.s 22: Am 1996 No 144, Sch 1 (8).
Subdivision 3 Serious offenders
pt 3, div 2, sdiv 3: Ins 1996 No 144, Sch 1 (9).
22A Application of this Subdivision
This Subdivision applies only to prisoners who are serious offenders.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22B Definitions
(1) In this Subdivision:prisoner submissions means submissions under this Subdivision to the Board by a prisoner.submissions means victim submissions or prisoner submissions.victim of a prisoner means:(a) a victim of the offence for which the prisoner has been sentenced (or of any offence taken into account under section 21 of the Criminal Procedure Act 1986 when that sentence was passed), or(b) a family representative of such a victim (if the victim is dead or under any incapacity or in such circumstances as may be prescribed by the regulations).victim submissions means submissions under this Subdivision to the Board by a victim.Victims Register means the register kept under section 22M of the names of victims of prisoners who have requested that they be given notice under this Subdivision of the possible parole of the prisoner concerned.(2) A victim of an offence for the purposes of the definition of victim in subsection (1) includes a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence. A person suffers harm if, as a result of such an act:(a) the person suffers actual physical bodily harm, mental illness or nervous shock, or(b) the person’s property is deliberately taken, destroyed or damaged.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22C Preliminary consideration by Board
(1) The Board is required to give preliminary consideration as to whether a prisoner should be released on parole:(a) at least 60 days before the day on which the prisoner becomes eligible for release on parole, and(b) if the prisoner has not been released on parole on or after that day—within each successive year following that day if the prisoner is then eligible for release on parole, and(c) if the prisoner has been released on parole on or after that day but the parole order has been revoked and a further parole order has not been made for the prisoner after that revocation—within each successive year following that revocation if the prisoner is then eligible for release on parole.(2) Despite subsection (1) (a), the Board may defer giving preliminary consideration to a day less than 60 days (but not less than 21 days) before the day on which the prisoner becomes eligible for release on parole if it is of the opinion that it is unable to complete its preliminary consideration because it has not been furnished with a report required to be made to it or there are other relevant matters requiring further consideration.(3) Despite subsection (1) (c), the Board is not required to give preliminary consideration until the person concerned is returned to the prison system following revocation of the parole order. If the person is at large for the whole of one or more years following the revocation, the Board may decline to consider its decision at all in relation to that year or those years.(4) Despite the above provisions of this section, the Board may decline to consider the case of a prisoner for up to but not exceeding 3 years at a time after it last considered the grant of parole to the prisoner under this Division.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22D Formulation of Board’s initial intention
On or immediately after giving its preliminary consideration as to whether a prisoner should be released on parole, the Board is required to formulate and record its initial intention either:(a) to make a parole order in relation to the prisoner, or(b) not to make such a parole order.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22E General procedure following formulation of Board’s initial intention
(1) The Board is to decide, in accordance with this Subdivision, to make or not to make a parole order, on the following principles:(a) the Board will confirm its initial intention to make a parole order if there are no victim submissions or if it is not required to seek victim submissions,(b) the Board will reconsider its initial intention to make a parole order if there are victim submissions and will in that event take into account any prisoner submissions,(c) the Board will confirm its initial intention not to make a parole order if there are no prisoner submissions,(d) the Board will reconsider its initial intention not to make a parole order if there are prisoner submissions and will in that event take into account any victim submissions.(2) Submissions are to be disregarded unless they are made in accordance with this Subdivision.(3) The Board is required to consider all submissions made in accordance with this Subdivision.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22F Preliminary notice to victims of initial intention to make parole order
(1) As soon as practicable after formulating its initial intention to make a parole order, the Board is (subject to and in accordance with the regulations) required to give a preliminary notice of its intention to victims of the prisoner whose names are recorded in the Victims Register.(2) The preliminary notice must:(a) give an indication of the Board’s initial intention, and(b) state that there will be an opportunity for submissions to be made by victims of the prisoner about the making of a parole order in relation to the prisoner, and(c) specify a period of at least 14 days during which a notice of intention to make submissions to the Board may be lodged with the Secretary of the Board by a victim, and(d) be in a form approved by the Board.(3) In circumstances where preliminary notice need not be given of its initial intention to make a parole order, the Board may, subject to section 22N, proceed immediately to confirm its initial intention.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22G Preliminary notice to prisoner of initial intention not to make a parole order
(1) As soon as practicable after formulating its initial intention not to make a parole order, the Board is required to give a preliminary notice of its intention to the prisoner.(2) The preliminary notice must:(a) give an indication of the Board’s initial intention, and(b) state that there will be an opportunity for submissions to be made by the prisoner about the making of a parole order in relation to the prisoner, and(c) specify a period of at least 14 days during which a notice of intention to make submissions to the Board may be lodged with the Secretary of the Board by the prisoner, and(d) except as provided by section 49, be accompanied by copies of the reports and other documents intended to be used by the Board in deciding whether the prisoner should be released on parole, and(e) be in a form approved by the Board.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22H Procedure following preliminary notice to victims of initial intention to make parole order
(1) If a notice of intention to make submissions is lodged with the Secretary of the Board by a victim within the period specified in the notice under section 22F, the Board must set a date (occurring as soon as practicable, but not earlier than the end of that period) on which the Board will conduct a hearing at a meeting for the purpose of receiving and considering those submissions.(2) Subject to section 22J (2), the Board may postpone or adjourn any such hearing for any reason that seems appropriate to it.(3) A person who lodges such a notice of intention within that period:(a) is entitled to receive reasonable notice of the hearing and any postponed or adjourned hearing, and(b) is entitled to be present at any such hearing and to have a reasonable opportunity to make relevant submissions at the hearing.(4) The prisoner concerned is entitled to receive reasonable notice of any such hearing, and is entitled to be present at any such hearing and to have a reasonable opportunity to make any relevant submissions at the hearing.(5) Submissions can be made in either or both of the following ways:(a) Submissions can be made in writing and can be presented to the Board in advance of the hearing or at the hearing.(b) Submissions can be made orally, but in the case of victim submissions only with the approval of the Board.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22I Procedure following preliminary notice to prisoner of initial intention not to make a parole order
(1) If a notice of intention to make submissions is lodged with the Secretary of the Board by the prisoner within the period specified in a notice under section 22G, the Board must set a date (occurring as soon as practicable) on which the Board will conduct a hearing at a meeting for the purposes of receiving and considering submissions by the prisoner.(2) Subject to section 22J (2), the Board may postpone or adjourn any such hearing for any reason that seems appropriate to it.(3) The prisoner is entitled to receive reasonable notice of the hearing and any postponed or adjourned hearing, and is entitled to be present at any such hearing and to have a reasonable opportunity to make relevant submissions at the hearing.(4) On or before setting a date for a hearing under subsection (1), the Board is (subject to and in accordance with the regulations) required to give notice to victims of the prisoner whose names are recorded in the Victims Register that it proposes to give them an opportunity to make submissions about the making of a parole order in relation to the prisoner.(5) The notice under subsection (4) must:(a) give an indication of the Board’s initial intention not to make a parole order, but must indicate that this intention could be reversed, and(b) specify a period of at least 14 days during which a notice of intention to make submissions to the Board may be lodged with the Secretary of the Board, and(c) be in a form approved by the Board.(6) A victim who lodges such a notice of intention within that period is entitled to receive reasonable notice of any such hearing, and is entitled to be present at any such hearing and to have a reasonable opportunity to make any relevant submissions at the hearing.(7) Submissions can be made in either or both of the following ways:(a) Submissions can be made in writing and can be presented to the Board in advance of the hearing or at the hearing.(b) Submissions can be made orally, but in the case of victim submissions only with the approval of the Board.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22J Decision following review
(1) At a meeting held for the purposes of a hearing under section 22H or 22I, the Board is required, after reviewing all the reports, documents, submissions and other information placed before it, to decide whether or not the prisoner should be released on parole or whether, for reasons specified by the Board in its minutes, the making of that decision should be deferred.(2) That decision:(a) may be deferred once only, and(b) may not be deferred for more than 2 months.(3) If, under this section, the Board decides that a prisoner should be released on parole, the Board may make an order under section 22L.(4) If, under this section, the Board decides that a prisoner should not be released on parole or defers making a decision, the Board is required:(a) to cause the reason for the decision or deferral to be recorded in the minutes of the Board, and(b) to cause the prisoner to be advised, by notice in writing served on the prisoner, of the decision or deferral and the reason for the decision or deferral.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22K Decision where no review
(1) The Board is required to confirm its initial intention to make a parole order if there are no victim submissions or if it is not required to seek victim submissions.(2) The Board is required to confirm its initial intention not to make a parole order if there are no prisoner submissions.(3) If, under this section, the Board confirms its initial intention to make a parole order, the Board is required to make an order under section 22L.(4) If, under this section, the Board confirms its initial intention not to make a parole order, the Board is required:(a) to cause the reason for its refusal to make a parole order to be recorded in the minutes of the Board, and(b) to cause the prisoner to be advised, by notice served on the prisoner, of the refusal and the reason for the refusal.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22L Parole order
(1) If the Board decides in accordance with this Subdivision that a prisoner should be released on parole, the Board is required to make an order directing the release of the prisoner at a specified time on:(a) if the day on which the prisoner becomes eligible for release on parole occurs after the period of 8 days after the order is made—that day, or(b) if the day on which the prisoner becomes eligible for parole occurs during the period of 8 days after the order is made—a day during the period of 7 days commencing at the end of that period, or(c) if the day on which the prisoner becomes eligible for release on parole has passed—a day during the period of 7 days commencing at the end of the period of 8 days after the order is made.(2) If an application is made to the Court of Criminal Appeal under section 23A within the period of 7 days after a parole order is made, the order is suspended until the application is dealt with by the Court or the application is withdrawn.(3) However, if the direction of the Court of Criminal Appeal includes a requirement that the Board reconsider its decision in the light of the direction, the suspension of the order continues until the Board revokes the order under section 28 or confirms it with or without modifications. If the Board does neither during the period of 28 days after the date of the Court’s order, the suspension automatically lapses at the end of that period.ss 22A–22L: Ins 1996 No 144, Sch 1 (9).
22M Victims Register and notice to victims and other persons
(1) There is to be a Victims Register.(2) There is to be recorded in the Victims Register the names of victims of prisoners who have requested that they be given notice under this Subdivision of the possible parole of the prisoner concerned.(3) The Victims Register is, subject to the regulations, to be kept by such government agency as the Minister directs.(4) The regulations may make provision for or with respect to:(a) the keeping of the Victims Register, and(b) the manner in which a notice to victims may or must be given under this Subdivision and the circumstances (if any) in which such a notice need not be given, and(c) the identification of persons who are victims for the purposes of this Subdivision, including the determination of the persons who are family representatives of victims and the provision by persons claiming to be victims of evidence of their identity and of the circumstances by which they claim to be victims.(5) A person who has requested that he or she be given notice under this Subdivision of the possible parole of a prisoner may apply to the Administrative Decisions Tribunal for a review of the refusal or failure of the government agency referred to in subsection (2) to record the person’s name in the Victims Register.s 22M: Ins 1996 No 144, Sch 1 (9). Am 1998 No 48, Sch 2.19.
22N Reasons to be provided for rejection of Review Council’s advice
(1) If the Board rejects the advice of the Review Council given under section 62 of the Prisons Act 1952 concerning the release on parole of a prisoner, the Board must state in writing its reasons for rejecting that advice.(2) The Board must forward a copy of those reasons to the Review Council.(3) The Review Council may make submissions to the Board concerning the rejection of its advice within 21 days of that rejection.(4) The Board is not to make a final decision concerning the release of the prisoner during the period referred to in subsection (3).s 22N: Ins 1996 No 144, Sch 1 (9).
22O Submissions by the State
(1) The State may also make submissions to the Parole Board concerning the release on parole of a prisoner.(2) If the State does so, the Parole Board is not to make a final decision concerning the release of the prisoner until it has taken any such submission into account.(3) The regulations may make provision with respect to submissions by the State under this section, including provisions relating to the application of this Subdivision in connection with any such submission.(4) The powers of the State under this section may be exercised, subject to those regulations, by any agent of the State.s 22O: Ins 1996 No 144, Sch 1 (9).
22P Matters to be considered concerning certain serious offenders
(1) This section applies to a person whose sentence of imprisonment for life has been the subject of a determination under section 13A (4).(2) The Board, in exercising its functions under this Part in relation to a person to whom this section applies:(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned, and(b) must give consideration to adopting or giving effect to their substance and the intention of the original sentencing court when making them, and(c) must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so.(3) The Board, in exercising its functions under this Part in relation to a person to whom this section applies, must in particular have regard to the need to preserve the safety of the community.s 22P: Ins 1997 No 6, Sch 1 [10].
Subdivision 4 Applications to Court of Criminal Appeal
pt 3, div 2, sdiv 4, hdg: Ins 1996 No 144, Sch 1 (10).
23 Application to Court of Criminal Appeal by prisoner
(1) If:(a) the Board has decided, under section 22, 22J or 22K, that a prisoner should not be released on parole, andthe prisoner may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Board as to whether the information was false, misleading or irrelevant and the Court of Criminal Appeal may give such direction with respect to the information as it thinks fit.(b) the prisoner alleges that the decision of the Board was made on information which was false, misleading or irrelevant,(2) An application under this section is not to be considered by the Court of Criminal Appeal unless it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.(3) At the hearing or determination of an application under this section, the applicant is not entitled to appear in person, except by leave of the Court of Criminal Appeal.(4) The power of the Court of Criminal Appeal to grant the applicant leave to appear in person at the hearing or determination of an application under this section may be exercised by any Judge of that Court, but no appeal lies to that Court against the refusal of a Judge of that Court to grant leave to so appear.s 23: Am 1996 No 144, Sch 1 (11).
23A Application to Court of Criminal Appeal by Crown
(1) If:(a) the Board has decided, under section 22J or 22K, that a prisoner who is a serious offender should be released on parole, andthe Attorney General or the Director of Public Prosecutions may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Board as to whether the information was false, misleading or irrelevant and the Court of Criminal Appeal may give such directions with respect to the information as it thinks fit.(b) the Attorney General or the Director of Public Prosecutions alleges that the decision of the Board was made on information that was false, misleading or irrelevant,(2) At the hearing or determination of an application under this section, the prisoner is not entitled to appear in person, except by leave of the Court of Criminal Appeal.(3) The power of the Court of Criminal Appeal to grant the prisoner leave to appear in person at the hearing or determination of an application under this section may be exercised by any Judge of that Court, but no appeal lies to that Court against the refusal of a Judge of that Court to grant leave to so appear.s 23A: Ins 1996 No 144, Sch 1 (12).
Division 3 Parole orders—sentences of 3 years or less
24 Making of parole orders by court
(1) When a court imposes a sentence of imprisonment of 3 years or less that has a minimum term, the court is required to make an order directing the release of the prisoner on parole at the end of the minimum term.(2) A parole order under this section is conditional on the prisoner being eligible for release in accordance with section 14 at the time the minimum term ends.(3) If the prisoner is not eligible for release at that time, the prisoner is entitled to be released on parole as soon as the prisoner becomes so eligible.(4) This section does not authorise the release on parole of a prisoner who is also serving a sentence of imprisonment of more than 3 years that has a minimum term unless the prisoner is entitled to be released under Division 2.(5) A parole order may be made under this section even though at the time it is made it appears that the prisoner might not be eligible for release at the end of the minimum term because of another sentence to which the prisoner is subject.
25 Making of parole orders by Board
(1) An order may be made by the Board directing the release of a prisoner on parole if the prisoner is subject to a sentence of imprisonment of 3 years or less that has a minimum term and:(a) a court fails to make a parole order as required by section 24, or(b) a parole order made by a court under that section has been revoked.(2) Division 2 applies to the making of a parole order under this section.s 25: Am 1992 No 56, Sch 1 (1).
Division 3A Parole orders—exceptional circumstances
pt 3, div 3A (s 25A): Ins 1989 No 220, Sch 1 (2).
25A Parole orders in exceptional circumstances
(1) The Board may make a parole order directing the release of a prisoner on parole who (but for this section) is not otherwise eligible for release on parole, but only if the prisoner is dying or if the Board is satisfied that it is necessary to release the prisoner on parole because of exceptional extenuating circumstances.(2) If a parole order is made under this section in respect of a sentence with a minimum term, the remaining period of the minimum term is to be added to and becomes part of the additional term for the sentence.(3) If a parole order is made under this section in respect of a sentence with a fixed term, the sentence is to be taken to comprise a minimum term for the period until release and an additional term for the balance of the sentence.(4) The Board is not required to consider an application for a parole order under this section, nor to conduct a hearing if it decides not to grant such an application.(5) Divisions 2 and 3 do not apply to a parole order under this section.(6) This section does not apply in respect of a person serving a sentence of imprisonment for life.pt 3, div 3A (s 25A): Ins 1989 No 220, Sch 1 (2).
Division 4 Parole orders—general provisions
26 Duration of parole order
Unless revoked, a parole order to which a person is subject expires when the sentence of imprisonment to which the order relates has expired.
27 Terms and conditions of parole order
(1) A parole order is subject to:(a) such terms and conditions (if any) as are prescribed by the regulations, and(b) any terms and conditions that are specified in the order when the order is made (but subject to any variation of those terms and conditions under this section).(2) The Board may, by order in writing served personally or by post (whether before or after the release of the person under the parole order) on the person to whom a parole order relates, vary the terms and conditions, other than any prescribed terms and conditions, to which the parole order is subject for the time being.(3) A term or condition of a parole order imposed by a court or the Board has no effect to the extent (if any) to which it is inconsistent with an applicable prescribed term or condition.(4) The terms and conditions of a parole order may include terms and conditions:(a) requiring that the person to whom the order relates be subject to supervision prescribed by the regulations, during the period specified by or under the order or the regulations, and(b) providing for the revocation of the order on a contravention by the person of a term or condition of the order, or otherwise.(5) Despite the terms and conditions to which a parole order is subject, the Board may, by notice in writing served personally or by post on the person to whom the order relates, terminate any requirement made by any such term or condition requiring or relating to the person’s being subject to supervision.(5A) In the case of a parole order made by a court under section 24, any requirement made by the terms or conditions of the parole order requiring or relating to the person’s being subject to supervision ceases to have effect if the court subsequently makes an order under the Periodic Detention of Prisoners Act 1981 directing the sentence to be served by way of periodic detention.(6) Without limiting the power of the Board under this section, a court may at any time vary any term or condition of a parole order imposed by the court.s 27: Am 1998 No 43, Sch 3 [2].
28 Revocation of parole order before release
The Board may, by order in writing and in such circumstances as may be prescribed by the regulations, revoke a parole order before the person to whom the order relates has been released under the order.
29 Release under parole order
A parole order made for a prisoner which has taken effect and has not been revoked is sufficient warrant for any person having lawful custody of the prisoner to release the prisoner as directed by the order.
30 Effect of parole order
A person who, after serving a minimum term that forms part of a sentence, is lawfully released on parole as directed by a parole order is to be taken to be serving the sentence of imprisonment from the time of release:(a) until the sentence expires, or(b) if the parole order is revoked or taken to have been revoked on a day that occurs before the sentence expires—until that day.
31 Procedural requirements
A parole order is not invalid merely because of a failure by the Board or a court to comply with any procedural requirement imposed by or under this Act.
32 Powers of Board if breach suspected
(1) If the Board has reasonable cause to believe that a person has contravened a term or condition of a parole order for the contravention of which the order may be revoked, the Board may, whether or not the order has expired:(a) by written notice served personally or by post on the person, require the person to appear before the Board at a specified time and place for the purpose of an inquiry into whether the order should be revoked, or(b) where, in the opinion of the Board, the circumstances of the particular case so require, without revoking the order, decide that a warrant should be issued under section 36.(2) If a person fails to comply with the requirements of a notice served on the person under this section, the Board may:(a) without revoking the parole order, decide that a warrant should be issued under section 36, or(b) by an order made under section 34, revoke the parole order.(3) The Board is not required to inquire into a possible contravention of a parole order made by a court unless the person to whom the order relates is required by the terms and conditions of the order to be supervised.
33 Inquiry into suspected breach
(1) If a person to whom a parole order relates attends before the Board pursuant to:(a) the requirements of a notice served under section 32, orthe Board must immediately inquire into whether any of the terms and conditions of the order have been contravened.(b) a warrant issued under section 36,(2) The person to whom the parole order relates may make submissions to the Board against the revocation of the order.
34 Revocation of parole order by Board
(1) The Board may, by order in writing, revoke a parole order or direct that it is to be taken to have been revoked:(a) if the terms and conditions of the parole order provide that the order may be revoked because of a contravention of any of those terms and conditions by the person to whom the order relates and the person has contravened any such term or condition, or(b) if the terms and conditions of the parole order provide that the order may be revoked otherwise than because of a contravention of any of those terms and conditions and the order is revoked in accordance with any such provision, or(c) if the Board is satisfied that the person to whom the parole order relates has been sentenced by a court to imprisonment for an offence committed while the order was in force, or(d) if the Board is authorised by section 32 to revoke the parole order.(2) The Board may revoke a parole order or direct that it is to be taken to have been revoked whether or not:(a) a notice has been served under section 32, or(b) an inquiry has been held under section 33.(3) Where the Board makes an order under this section, the Board must, in the order, state the reason for the revocation.(4) The Board may, in an order made under this section, direct that a parole order is to be taken to have been revoked:(a) where the parole order is revoked because of a contravention of a term or condition of the order, on such day occurring not earlier than the day on which the contravention occurred, oras the Board specifies in the order made under this section.(b) where the parole order is revoked because of the imposition of a sentence of imprisonment, on such day occurring not earlier than the day on which the offence to which the sentence relates was committed,(5) A direction under this section has effect even if the parole order concerned has expired and even if the person concerned is consequently required to serve a period of a sentence of imprisonment which would otherwise have expired.(6) For the purposes of this section, the day on which a contravention of a term or condition of a parole order occurred shall be such day as is determined by the Board.
34A Request by State to revoke parole order
The Attorney General or the Director of Public Prosecutions may request the Board to exercise its powers under section 34 to revoke a parole order made in relation to a prisoner who is a serious offender, on the ground that the order was made on information that was false, misleading or irrelevant.s 34A: Ins 1996 No 144, Sch 1 (13).
35 Revocation of parole order by court
(1) In sentencing a person to whom a parole order relates to imprisonment for another offence, a court may:(a) revoke the parole order, or(b) direct that the parole order is to be taken to have been revoked on such day, occurring while the parole order was in force but not earlier than the day on which the offence to which the sentence relates was committed, as is specified by the court in the direction.(2) A direction under this section has effect even if the parole order concerned has expired and even if the person concerned is consequently required to serve a period of a sentence of imprisonment which would otherwise have expired.(3) Without limiting the power of the Board under section 34, the court which made a parole order may exercise the powers of the Board under that section to revoke the order.
36 Warrants
(1) If:(a) a parole order made for a person has been revoked, orthe Board may, by warrant signed by the Chairperson, Alternate Chairperson or Deputy Chairperson of the Board, authorise any member of the Police Force to arrest the person to whom the parole order related or relates.(b) the Board has made a decision under section 32 that a warrant should be issued for the arrest of the person for whom a parole order was made,(2) If a warrant is issued under this section because of the revocation of a parole order made for a person, the warrant also authorises any member of the Police Force to return the person to a prison for the purpose of serving the person’s sentence of imprisonment.(3) If a warrant is issued under this section because of a decision made under section 32, the warrant also authorises any member of the Police Force:(a) to return the person to a prison, orthere to remain until the revocation of the warrant by the Board or the court or until the expiration of the period of 7 days commencing with the day on which the person was returned to prison or removed to a place of custody, or to court, pursuant to the warrant, whichever first occurs, for the purpose of conducting an inquiry under section 33 to determine whether the terms and conditions of the parole order have been contravened.(b) if the terms of the warrant so require, to remove the person to a place of custody or to a court, or both, as specified in the warrant,(4) A warrant issued under this section is sufficient authority for the arrest of the person to whom it relates by a member of the Police Force and the removal to and detention in prison or at another place, as the warrant may require, of the person.s 36: Am 1992 No 56, Sch 1 (2); 1993 No 90, Sch 1 (6).
37 Judicial notice of warrants
All courts and persons acting judicially shall take judicial notice of an instrument that purports to be a warrant signed in accordance with section 36 until it is proved that the instrument is not such a warrant.
38 Notice of revocation
(1) As soon as practicable after the Board revokes a parole order, the Board shall cause a notice under this section to be served on the prisoner to whom the order related.(2) The notice must:(a) set a date, occurring not earlier than 14, nor later than 28, days after the date on which it is served, on which the Board is to meet for the purpose of:(i) reconsidering the revocation of the parole order, and(ii) if the parole order is taken to have been revoked on an earlier day than the day on which the Board decided to revoke the parole order—determining whether the specification of the earlier day should be revoked or varied, and(b) require the prisoner to notify the Secretary of the Board, not later than 7 days before the date so set, if the prisoner intends to make representations to the Board in relation to the revocation of the order or the specification of the earlier day, or both, and(c) be in the form prescribed by the regulations, and(d) except as provided by section 49, be accompanied by:(i) a copy of the order which revoked the parole order, and(ii) copies of the reports and other documents used by the Board in making the decision to revoke the parole order and, if appropriate, to specify the earlier day.
39 Review of revocation
(1) Where a notice has been served on a prisoner under section 38 and the prisoner has duly notified the Secretary of the Board that the prisoner intends to make representations to the Board, the Chairperson of the Board shall convene a meeting of the Board, on the date set by the notice, for the purpose of:(a) reconsidering the revocation of the parole order, oror both, as the case may require.(b) determining whether the specification of the earlier day should be revoked or varied,(2) At the meeting of the Board convened pursuant to the notice, or at a subsequent meeting to which that meeting is adjourned or postponed, the prisoner may make submissions to the Board with respect to the revocation of the parole order and, if appropriate, the specification of the earlier day.
40 Decision after review
(1) The Board shall, after reviewing all the reports, documents and other information placed before it, decide whether or not it should:(a) rescind the revocation of the parole order concerned, or(b) revoke or vary the specification of the earlier day.(2) A decision under this section has effect according to its tenor even if the parole order concerned has expired.
41 Application to Court of Criminal Appeal
(1) Where:(a) the Board has revoked a parole order, andthe person may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Board as to whether the information was false, misleading or irrelevant and the Court of Criminal Appeal may give such direction with respect to the information as it thinks fit.(b) the person to whom the parole order related alleges that the parole order was revoked as a consequence of a decision made on information that was false, misleading or irrelevant,(2) Subsections (2)–(4) of section 23 apply to an application under this section in the same way as they apply to an application under section 23.
41A Application to Court of Criminal Appeal by State
(1) If:(a) the Board refuses within 28 days after a request by the Attorney General or the Director of Public Prosecutions under section 34A to revoke a parole order in relation to a prisoner who is a serious offender, andthe Attorney General or the Director of Public Prosecutions may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Board as to whether the information was false, misleading or irrelevant and the Court of Criminal Appeal may give such direction with respect to the information as it thinks fit.(b) the Attorney General or the Director of Public Prosecutions alleges that the order was made on information that was false, misleading or irrelevant,(2) Subsections (2) and (3) of section 23A apply to an application under this section in the same way as they apply to an application under section 23A (1).s 41A: Ins 1996 No 144, Sch 1 (14).
Part 4 Application of this Act to children
42 Definitions
(1) In this Part:detainee means a person subject to a detention order within the meaning of the Children (Detention Centres) Act 1987.detention centre means a detention centre within the meaning of the Children (Detention Centres) Act 1987.(2) A reference in this Part to the making of a control order is a reference to the making of an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987, by which a person is committed to the control of the Minister administering the Children (Detention Centres) Act 1987.(3) A reference in this Part to this Act does not include a reference to Schedules 3–5 to this Act.
43 Application of this Act to children
(1) This Act applies to the making of control orders and to detainees in the same way as it applies to the sentencing of persons to imprisonment and to prisoners.(2) This Act so applies as if:(a) a reference to the sentencing of a person to imprisonment were a reference to the making of a control order, and(b) a reference to a prisoner were a reference to a detainee, and(c) a reference to a prison were a reference to a detention centre, and(d) a reference to a conviction were a reference to a finding of guilt, and(e) a reference to the Board or a member of the Board in Part 3 and sections 48, 49 and 51 were a reference to the Children’s Court or a Children’s Magistrate, respectively, and(f) a reference to the Secretary of the Board were a reference to a Registrar of the Children’s Court, and(g) a reference to a prisoner being endangered in section 49 included a reference to a detainee being psychologically harmed, and(h) a reference to the Commissioner of Corrective Services were a reference to the Director-General of the Department of Juvenile Justice.s 43: Am 1996 No 144, Sch 1 (15).
Part 5 The Parole Board
pt 5, hdg: Am 1996 No 144, Sch 1 (16).
44 Constitution of the Board
(1) There is constituted by this Act a Parole Board.(2) The Board has the functions conferred or imposed on it by or under this or any other Act.s 44: Am 1996 No 144, Sch 1 (17).
45 Composition of the Board
(1) The Board is to consist of:(a) at least 7, but not more than 19, members appointed by the Governor, and(b) 2 ex-officio members, one being a police officer nominated by the Commissioner of Police and one being an officer of the Probation and Parole Service nominated by the Commissioner of Corrective Services.(2) Of the appointed members:(a) 3 are to be judicially qualified persons, and(b) the remainder are to reflect as closely as possible the composition of the community at large.(3) For the purposes of subsection (2) (a), judicially qualified persons are:(a) Judges or retired Judges of a New South Wales Court or the Federal Court, or(b) Magistrates or retired Magistrates, or(c) persons qualified to be appointed as a Judge of a New South Wales Court.(4) For the purposes of any meeting of the Board, not more than 4 members referred to in subsection (2) (b) may attend for the purposes of constituting the Board. If there are more than 4 of those members at any particular time, the members who may so attend a particular meeting are to be determined in accordance with arrangements approved by the Chairperson of the Board.s 45: Subst 1992 No 56, Sch 1 (3). Am 1996 No 144, Sch 1 (18)–(22).
46 Provisions relating to members, Divisions and procedure of the Board
Schedule 1 has effect with respect to the Board.
47 Secretary and other staff of the Board
A Secretary of the Board and such other staff as are necessary to enable the Board to exercise its functions may be employed under Part 2 of the Public Sector Management Act 1988.
Part 6 Miscellaneous
48 Disclosure of information
(1) A person shall not:(a) disclose any information to another person, orrelating to a prisoner and furnished to the Board, unless the disclosure or supply is:(b) supply to another person any report or other document,(c) made in connection with the administration of this Act or the regulations, or(d) made with the prior permission of the Board, or(e) ordered by a court, or by any other body or person authorised by law to examine witnesses, in the course of, and for the purpose of, the hearing or determination by that court, body or person of any matter or thing, or(f) made in accordance with the regulations.Maximum penalty: 5 penalty units.(2) The Board may grant permission as referred to in subsection (1) (d) only if it is satisfied that to do so would be in the public interest or in the interest of the prisoner concerned.
49 Security of certain information
Nothing in section 20, 22G or 38 requires a prisoner to be provided with a copy of a report or another document (or any part of the report or document) if its provision to the prisoner may, in the opinion of a judicial member of the Board:(a) adversely affect the security, discipline or good order of a prison, or(b) endanger the prisoner or any other person.s 49: Am 1996 No 144, Sch 1 (23).
50 Report to the Minister
(1) The Board shall, as soon as practicable after 31 December in each year, supply to the Minister for presentation to Parliament a report giving information as to the Board’s activities during that year and setting out statistical information as to:(a) the number of cases considered by the Board, and(b) the number of persons released on parole pursuant to this Act, and(c) the number of parole orders amended, varied or revoked by the Board, and(c1) the number of existing licences amended, varied or revoked by the Board, and(d) such other matters as to the Board seem appropriate.(2) The Board:(a) shall report to the Minister on the release of any prisoner, if the question of whether the prisoner should be released has been referred by the Minister to the Board, and(b) may report to the Minister on whether the detention in strict custody in a prison of a person under section 25 or 39 of the Mental Health (Criminal Procedure) Act 1990 should be continued or not.s 50: Am 1990 No 11, Sch 2; 1993 No 90, Sch 1 (7).
51 Information concerning prisoners and prisons
(1) The Commissioner of Corrective Services, and all persons employed in a prison, shall grant to the members of the Board or to any person authorised in writing by the Board in that behalf access at all reasonable times to any prisoner confined in the prison:(a) whose release on parole is being considered by the Board, or(b) whose case has been referred to the Board by the Minister as referred to in section 50, or(c) in respect of whom a minimum term is applicable, or(d) who is being detained in strict custody in a prison under section 25 or 39 of the Mental Health (Criminal Procedure) Act 1990, orand shall provide for those members or persons, as the case may be, facilities for communicating with or observing the prisoner.(e) who is a licensee or a person whose existing licence has been revoked,(2) The Commissioner of Corrective Services or the Commissioner of Police shall, if so requested by the Board, supply or cause to be supplied to the Board reports on the conduct and character of:(a) any prisoner referred to in subsection (1), and(b) any person who is for the time being subject to a parole order.(3) Where any prisoner or person referred to in subsection (2) was formerly:(a) an inmate of an institution, within the meaning of the Child Welfare Act 1939, orthe Director-General of the Department of Community Services (in respect of a prisoner or person referred to in paragraph (a)) or the Director-General of the Department of Juvenile Justice (in respect of a prisoner or person referred to in paragraph (b)), shall, if requested by the Board, supply or cause to be supplied to the Board a report on the conduct and character of the prisoner or person while an inmate of an institution or while a person detained in a detention centre.(b) a person detained in a detention centre, within the meaning of the Children (Detention Centres) Act 1987,(4) The Director-General of the Department of Health shall, if requested by the Board:(a) arrange for psychological, medical or psychiatric examinations to be carried out on any prisoner or person referred to in subsection (2), and(b) supply, or cause to be supplied, to the Board all reports on the result of any such examination.(5) There shall be included in any report on a prisoner or person supplied to the Board under this section any information available to the person supplying the report or causing it to be supplied which may be of assistance to the Board in considering the case of the prisoner or person to whom the report relates.s 51: Am 1990 No 11, Sch 2; 1993 No 90, Sch 1 (8); 1996 No 144, Sch 1 (24)–(27).
52 Evidence
A document purporting to be a certificate made or issued by a prescribed officer recording the particulars of a parole order made by a court is, in all courts and before all persons and bodies authorised by law to receive evidence, prima facie evidence of the matters set out in the certificate.
53 Royal prerogative etc preserved
Nothing in this Act limits or affects in any manner the Royal prerogative of mercy or any entitlement of a prisoner to be discharged or released from prison under the Crimes Act 1900 or any other Act.
54 Proceedings for offences
Proceedings for an offence against this Act or the regulations shall be disposed of summarily before a Local Court constituted by a Magistrate sitting alone.
55 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to:(a) terms and conditions of parole orders, and(b) applications under, and forms to be used for the purposes of, this Act and the regulations, and(c) the service of notices and other instruments under this Act or the regulations, and(d) information to be provided to prisoners and other persons for the purposes of this Act, and(e) the procedure to be followed at meetings of the Board.(2) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.
56 Repeals
(1) The Probation and Parole Act 1983 is repealed.(2) The Probation and Parole Regulation 1984 is repealed.
57 Savings and transitional provisions
Schedules 2 and 2A have effect.s 57: Am 1996 No 144, Sch 1 (28).
58 Amendment of Acts
(1) The Prisons Act 1952 is amended as set out in Schedule 3.(2) The Children (Criminal Proceedings) Act 1987 and the Children (Detention Centres) Act 1987 are amended as set out in Schedule 4.(3) The Acts specified in Schedule 5 are amended as set out in that Schedule.
Schedule 1 Provisions relating to the members of the Board, Divisions of the Board and procedure
(Section 46)
1 Definitions
In this Schedule:Alternate Chairperson means the Alternate Chairperson of the Board.Chairperson means the Chairperson of the Board.committee means a committee appointed under clause 22.Deputy Chairperson means the Deputy Chairperson of the Board.Division means a Division of the Board constituted under clause 9.Judge includes Magistrate.judicial member means the Chairperson, Alternate Chairperson or Deputy Chairperson.member means a member of the Board.non-judicial member means a member other than the Chairperson, Alternate Chairperson or Deputy Chairperson.
2 Chairperson etc of the Board
(1) The members referred to in section 45 (2) (a) shall respectively be appointed, in and by the instruments by which the members are appointed (or in and by other instruments executed by the Governor) as:(a) Chairperson of the Board, and(b) Alternate Chairperson of the Board, and(c) Deputy Chairperson of the Board.(2) The appointment of a person who is a Judge as the Chairperson, Alternate Chairperson or Deputy Chairperson does not, nor does the person’s service as the Chairperson, Alternate Chairperson or Deputy Chairperson, affect the person’s tenure of the office of a Judge or the person’s rank, title, status, precedence, salary or other rights or privileges as a holder of that office.(3) A person who is a Judge may, even though the person is the Chairperson, Alternate Chairperson or Deputy Chairperson, exercise the powers of a Judge.(4) The service, as the Chairperson, Alternate Chairperson or Deputy Chairperson, of a Judge shall, for all purposes, be taken to be service as a Judge.
3 Acting members
(1) The Alternate Chairperson, during the illness or absence of the Chairperson, is to act in the office of the Chairperson and, while so acting, has all the functions of the Chairperson and is taken to be the Chairperson.(2) The Deputy Chairperson, during the illness or absence of the Alternate Chairperson, is to act in the office of the Alternate Chairperson and, while so acting, has all the functions of the Alternate Chairperson (including the function of acting in the office of the Chairperson, during the illness or absence of the Chairperson as well) and is taken to be the Alternate Chairperson.(3) The Governor may, from time to time, appoint a person, being a judicially qualified person (as referred to in section 45), to act in the office of the Deputy Chairperson during the illness or absence of the Deputy Chairperson, and the person, while so acting, has all the functions of the Deputy Chairperson and shall be taken to be the Deputy Chairperson.(4) If a non-judicial appointed member has been granted leave of absence by the Minister for a period, the Governor may appoint a person to act in the office of the member during that period, and that person, while so acting, has all the functions of the member and shall be taken to be a member.(5) The Governor may, at any time, remove a person from an office to which the person was appointed under subclause (3) or (4).(6) For the purposes of this clause:(a) a vacancy in the office of Chairperson, Alternate Chairperson or Deputy Chairperson shall be taken to be an absence from office of the Chairperson, Alternate Chairperson or Deputy Chairperson, and(b) the Alternate Chairperson or Deputy Chairperson shall be taken to be absent from the office of Alternate Chairperson or Deputy Chairperson during any period of acting in another office pursuant to subclause (1) or (2).
3A Deputies
(1) The Commissioner of Police or the Commander, State Intelligence Group may from time to time appoint a person to be the deputy of the ex-officio member nominated by that Commissioner, and each may revoke such an appointment at any time.(2) The Commissioner of Corrective Services may from time to time appoint a person to be the deputy of the ex-officio member nominated by that Commissioner, and may revoke such an appointment at any time.(3) In the absence of an ex-officio member, the member’s deputy:(a) may, if available, act in the place of the member, and(b) while so acting, has all the functions of the member and is to be taken to be a member.
4 Terms of office
Subject to this Schedule, an appointed member holds office for such period (not exceeding 3 years) as is specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
5 Remuneration
An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
6 Vacancy in office of an appointed member
(1) The office of an appointed member becomes vacant if the member:(a) dies,(b) completes a term of office and is not re-appointed,(c) resigns the office by writing under his or her hand addressed to the Minister,(d) is removed from office by the Governor,(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit,(f) becomes a temporary patient or a continued treatment patient within the meaning of the Mental Health Act 1958, a forensic patient within the meaning of the Mental Health Act 1983 or a protected person within the meaning of the Protected Estates Act 1983,(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable,(h) being a judicial member, ceases to be a judicially qualified person (as referred to in section 45).(i), (j) (Repealed)(2) The Governor may remove an appointed member from office at any time.
6A Withdrawal of nomination as ex-officio member
(1) The Commissioner of Police may at any time revoke the nomination of a police officer made for the purposes of section 45 (1) (b).(2) The Commissioner of Corrective Services may at any time revoke the nomination of an officer of the Probation and Parole Service made for the purposes of section 45 (1) (b).(3) On a revocation under this clause the office, as a Board member, of the person affected is taken to be vacant.
7 Filling of vacancy in office of member
In the event of the office of any member becoming vacant a person shall, subject to this Schedule, be appointed or nominated to fill the vacancy.
8 Effect of certain other Acts
(1) Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of the appointment of an appointed member.(2) The office of an appointed member is not, for the purposes of any Act, an office or place of profit under the Crown.
9 Divisions of the Board
(1) The Chairperson may constitute Divisions of the Board by nominating the members of each Division.(2) The Chairperson may, at any time, dissolve a Division.(3) A Division consists of:(a) the Chairperson and 3 non-judicial members, or(b) the Alternate Chairperson, or Deputy Chairperson, and 3 non-judicial members.(4) The Divisions may meet at different places at the same time.(5) In this Act (except this Schedule), a reference to the Board includes a reference to a Division of the Board.
10 Delegation to Divisions
(1) The Chairperson may delegate to a Division any function of the Board under this or any other Act.(2) A Division shall, for the purpose of the exercise of any function delegated to the Division by the Chairperson, be taken to be the Board.
11 General procedure
(1) Except as otherwise provided by this Act or the regulations:(a) meetings of the Board or of a Division shall be held at such times and places as are fixed by the Chairperson, and(b) the procedure for the convening of meetings of the Board or of a Division and for the conduct of business at those meetings shall be as determined by the Chairperson.(2) The Board or a Division may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit.(3) The Board or a Division is not bound by the rules or practice as to evidence and may inform itself on any matter as it thinks fit.(4) Proceedings before the Board or a Division:(a) shall be open to the public unless the Board or Division determines in any particular case that the proceedings shall be conducted wholly or partly in the absence of the public, and(b) shall not be conducted in an adversary manner.(5) A decision of the Board is not vitiated merely because of any informality or want of form.
11A Representation of Review Council
A non-judicial member of the Review Council, chosen by the Chairperson of the Review Council or by a judicial member of the Review Council nominated by the Chairperson, is entitled to attend and be heard (but not vote) at a meeting of the Board or a Division of the Board at which a matter relating to a serious offender is being considered.
12 Quorum
The quorum for a meeting of the Board or of a Division is 3 members consisting of at least 1 judicial member and at least 2 non-judicial members.
13 Presiding members
(1) The Chairperson or a judicial member nominated by the Chairperson shall preside at a meeting of the Board.(2) At a meeting of a Division, the judicial member of the Division shall preside.
14 Voting at meetings of the Board
If the Chairperson and the Alternate Chairperson or Deputy Chairperson, or both, are present at a meeting of the Board, only the Chairperson is entitled to vote with respect to any decision.
15 Decisions
(1) A decision supported by a majority of the votes cast at a meeting of the Board at which a quorum is present, including the vote cast by a judicial member entitled to vote at the meeting, is the decision of the Board.(2) A decision supported by the votes cast by the judicial member and at least one non-judicial member of a Division at a meeting of the Division at which a quorum is present is the decision of the Division.(3) In the case of a tied vote, the judicial member presiding at a meeting of the Board is to have the casting vote.
16 Powers of judicial members
(1) A judicial member may, by instrument in writing, require any person on whom the instrument is served personally or by post:(a) to appear before the Board or a Division for the purpose of giving evidence, orat a time, date and place specified in the instrument.(b) to produce to the Board or a Division any document (including a document in the custody or under the control of the person and in the possession of or the property of the Crown) that is relevant to any proceedings of the Board or of a Division,(2) The judicial member presiding at a meeting of the Board or of a Division may require a person who appears before the Board or Division to be sworn for the purpose of giving evidence on oath and may administer an oath accordingly.(3) If a document is produced to the Board or a Division pursuant to a requirement made under subclause (1), the Board or Division may take possession of the document for such period as it considers necessary for the purpose of the proceedings before it.(4) Subclause (1) does not have the effect of requiring a person to produce to the Board or a Division any document the production of which the Minister certifies in writing may:(a) endanger a prisoner or any other person, or(b) be otherwise contrary to the public interest.
17 Examination by a presiding member
(1) The judicial member presiding at a meeting of the Board or of a Division may require a person (including an officer or employee of the Crown) who appears before the Board or Division to answer a question that is reasonably related to the proceedings before the Board or Division.(2) A person is not excused from answering a question put to the person by a judicial member on the ground that the answer might tend to incriminate the person but, where the person claims, before answering the question, that the answer might tend to incriminate him or her, neither the question nor the answer is admissible in evidence against the person in criminal proceedings, other than proceedings for an offence under clause 18 (c) or in relation to a charge of perjury in respect of the answer.
18 Offences
A person shall not:(a) refuse, fail or neglect to comply with a requirement made of the person under clause 16 (1) or (2) or 17 (1) by a judicial member except to the extent to which the person is lawfully excused from complying with the requirement, or(b) in purported compliance with a requirement made of the person under clause 16 (1) by a judicial member, produce any document knowing it to be false or misleading in a material particular, or(c) not having been sworn, make a statement knowing it to be false or misleading in a material particular when appearing before the Board or a Division.Maximum penalty: 5 penalty units.
18A Misconduct in proceedings before the Board or Division
(1) A person must not, during a hearing at a meeting of the Board or a Division:(a) wilfully insult the members of the Board or Division, or(b) wilfully misbehave during the hearing, or(c) wilfully and without lawful excuse interrupt the hearing, or(d) without lawful excuse disobey a direction of the judicial member presiding during the hearing.Maximum penalty: 10 penalty units.(2) The judicial member presiding during the hearing may direct a person who does any thing referred to in subclause (1) to leave the place where the hearing is being conducted.(3) A person must not fail to comply with a direction under this clause.Maximum penalty: 10 penalty units.
19 Representation etc
(1) At any meeting of the Board or of a Division at which a person is, under this Act, entitled to make submissions to the Board or Division, the person may:(a) be represented by a barrister or solicitor or, with the consent of the Board or Division, by any other person, and(b) call and examine any witness who attends, including any witness called by the Board or Division, and(c) give evidence on oath, and(d) produce documents and exhibits to the Board or Division, and(e) otherwise adduce, orally and in writing, to the Board or Division such matters, and address the Board or Division on such matters, as are relevant to the proceedings before the Board or Division.(2) However, victims or their representatives are not entitled:(a) to call or examine witnesses at a hearing under Subdivision 3 of Division 2 of Part 3, or(b) without the approval of the Board or Division, to give evidence on oath, address the Board or Division or otherwise orally adduce any matter to the Board or Division.
20 Witnesses’ expenses
A person who is required to appear or to give evidence before the Board or a Division (other than a prisoner in respect of whom the proceedings are being held) is entitled to be paid such allowances and expenses, if any, as the Minister may determine in respect of the person.
21 Record of proceedings
(1) The member presiding at a meeting of the Board or of a Division shall cause a record of the proceedings at the meeting to be made.(2) Records made for the purposes of subclause (1) may be destroyed after the expiration of the period prescribed by the regulations.
22 Committees
The Chairperson may appoint one or more non-judicial members as a committee for the purpose of:(a) inquiring into and reporting to the Board on any prisoner to whom a parole order relates and whose case is to come before the Board for consideration, and(b) disposing of routine business of the Board, other than making determinations or decisions or submitting reports under Part 6.
23 Authentication of documents etc
Each document requiring authentication by the Board or a Division may be sufficiently authenticated if signed by a person purporting to be the member who presided at the meeting of the Board or Division when the proceedings with respect to which the document was prepared took place.
24 Certificate of Secretary
A document purporting to be a certificate made or issued by the Secretary of the Board recording any determination or decision of the Board shall in all courts and before all persons and bodies authorised by law to receive evidence be prima facie evidence of the matters set out in the certificate.
25 Proof of certain matters not required
In any legal proceedings, proof is not required, until evidence is given to the contrary, of:(a) the constitution of the Board or of a Division, or(b) any determination, decision or recommendation of the Board, or(c) the appointment of, or holding of office by, any member, or(d) the presence or nature of a quorum at any meeting of the Board or of a Division.
26 Liability of members etc
No matter or thing done by the Board, a Division or a committee, and no matter or thing done by any member or by any person acting under the direction of the Board or of a Division shall, if the matter or thing was done in good faith for the purpose of executing this or any other Act, subject a member or a person so acting personally to any action, liability, claim or demand.
sch 1: Am 1989 No 220, Sch 1 (3); 1991 No 17, Sch 1; 1991 No 94, Sch 2; 1992 No 56, Sch 1 (4); 1993 No 90, Sch 1 (9); 1996 No 144, Sch 1 (29)–(36); 1997 No 55, Sch 2.15; 1999 No 94, Sch 4.159 [2].
Schedule 2 Savings and transitional provisions
(Section 57)
Part 1 Provisions consequent on the enactment of this Act
1 Definitions
(1) In this Schedule:former Act means the Probation and Parole Act 1983.(2) In this Schedule, a reference:(a) to the former Act includes a reference to that Act as applied by section 33B of the Children (Criminal Proceedings) Act 1987, or(b) to a sentence of detention is a reference to the period of detention under a control order as referred to in Part 4
2 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect from the date of assent to this Act or a later day.(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of any thing done or omitted to be done before the date of its publication.
3 Preservation of existing remission reducing “head sentence”
This Act does not affect the reduction of any sentence of imprisonment or detention by any remission to which a person was entitled, immediately before the repeal of the former Act, under:(a) Part 11 of the Prisons Act 1952, or(b) section 29 of the Children (Detention Centres) Act 1987, or(c) section 19 of the Periodic Detention of Prisoners Act 1981, or(d) section 28 (6) (b) of the Prisoners (Interstate Transfer) Act 1982, or(e) the Royal prerogative of mercy.
4 Redetermination of non-parole or non-probation periods
(1) On the repeal of the former Act, a non-parole period or non-probation period (within the meaning of the former Act) applying to a prisoner immediately before that repeal shall be redetermined in accordance with this clause.(2) The non-parole period or non-probation period, as last fixed for the prisoner by a court or the Parole Board, shall be redetermined by reducing the period by the total of:(a) any existing remission to which the prisoner is entitled as referred to in clause 3, and(b) all future remission that the prisoner might have become entitled to (as estimated in accordance with this clause) had the provisions in force immediately before that repeal relating to the grant of remission continued in force.(3) A redetermination under this clause shall be made by the Board.(4) The Board is to make a redetermination under this clause on the basis that the prisoner would have received the maximum remission possible:(a) under section 64 (1) (a) and (b) of the Prisons Act 1952 (calculated as if the prisoner had served the remainder of any sentence in an open institution), orbut not under any other provision.(b) under clause 34 (1) (a) and (b) of the Children (Detention Centres) Regulation 1988 (calculated as if the prisoner had served the remainder of any detention as a Class B detainee),(5) A redetermination by the Board under this clause is final and is not liable to be challenged, appealed against, quashed or called into question by any court.(6) This clause applies even though the prisoner is on probation or on parole under the former Act on its repeal.(7) A reference in this clause to the Board is, in relation to a detainee within the meaning of Part 4, a reference to the Director-General of the Department of Family and Community Services.
5 Translation of existing sentences
(1) Each sentence of imprisonment or detention to which a person was subject immediately before the repeal of the former Act and in respect of which a non-parole or non-probation period then applied shall be taken to be a sentence consisting of:(a) a minimum term determined under this clause, and(b) an additional term determined under this clause.(2) The minimum term of any such sentence is the period from the commencement of the sentence to the end of the non-parole or non-probation period as redetermined under clause 4.(3) The additional term of any such sentence is the period from the end of the minimum term so determined to the end of the sentence, as reduced by any existing remission as referred to in clause 3.(4) This clause applies even though the person concerned is on probation or parole under the former Act on its repeal.(5) Each sentence of imprisonment or detention to which a person was subject immediately before the repeal of the former Act (being a sentence to which Part 2 applies) and in respect of which a non-parole or non-probation period did not then apply, is to be taken to be a fixed term.(6) Minimum and additional terms, or fixed terms, determined under this clause are to be taken to have been set under Part 2.
6 Saving of parole orders and probation orders
(1) A parole order or probation order made or deemed to have been made under the former Act is to be taken to be a parole order made under this Act.(2) Terms and conditions of any such parole order or probation order that were prescribed by the regulations under the former Act are to be taken to be terms and conditions prescribed by the regulations under this Act.(3) Anything done under a provision of the former Act in relation to such a parole order or probation order (including the issue of a warrant) is to be taken to have been done under the corresponding provision of this Act.
7 Saving of presumption in favour of parole for certain continuing prisoners
(1) This clause applies to a prisoner:(a) for whom a minimum term has not been set after the repeal of the former Act, and(b) to whom section 26 (1) of the former Act would have applied if that Act had not been repealed.(2) Despite section 17 (1), the Board, when deciding whether to make a parole order for a prisoner to whom this clause applies, shall make the order unless the Board determines that it has sufficient reason to believe that the prisoner, if released from custody, would not be able to adapt to normal lawful community life.
8 Application of Part 2 (Sentencing)
(1) Part 2 applies to a sentence of imprisonment or detention imposed on a person after the commencement of that Part even if the person was found guilty or convicted of the offence concerned before that commencement.(2) Part 2 does not apply to a sentence of imprisonment or detention imposed on a person after the commencement of that Part if the sentence is imposed in proceedings to correct a sentence imposed before that commencement.
9 Parole Board
(1) The members of the Parole Board constituted under the former Act who held office immediately before the repeal of the former Act cease to hold office on that repeal, but are eligible to be appointed to the Offenders Review Board constituted under this Act.(2) Anything done by or in relation to the Parole Board constituted under the former Act is to be taken to have been done by or in relation to the Offenders Review Board constituted under this Act.(3) A reference in any other Act, or in any instrument made under any Act or in any other document of any kind, to the Parole Board or a member of the Parole Board shall be read as a reference to the Offenders Review Board or a member of the Offenders Review Board.
10 Pending appeals against decisions of Visiting Justices preserved
Schedule 3 (4) does not affect any appeal against the decision of a Visiting Justice, being an appeal pending at the commencement of Schedule 3 (4).
Part 2 Provisions relating to existing licences
11 Existing licences preserved
An existing licence continues in force despite the repeal of Part 10 of the Prisons Act 1952 (the former Part) by the Prisons (Amendment) Act 1993, but subject to this Part.
12 Duration of existing licence
Unless revoked, an existing licence to which a person is subject expires when the sentence of imprisonment to which the licence relates expires.
13 Conditions of existing licence
(1) An existing licence is subject to:(a) any conditions that were indorsed on the licence when the licence was granted (including the limits specified in the licence within which the licensee may be at large), and(b) any variation of those conditions made under the former Part, this clause or any other Act, and(c) any conditions prescribed by the regulations.(2) The Board may, by order in writing served personally or by post on the licensee, vary the conditions, other than any prescribed conditions, to which the existing licence is subject.(3) A condition of an existing licence imposed by the Board has no effect to the extent (if any) to which it is inconsistent with an applicable prescribed condition.(4) A variation of the conditions of an existing licence may include conditions that:(a) require that the licensee be subject to supervision prescribed by the regulations, during the period specified by or under the licence or the regulations, and(b) provide for the revocation of the licence on a contravention by the person of a condition of the licence, or otherwise.(5) Despite the conditions to which an existing licence is subject, the Board may, by notice in writing served personally or by post on the licensee, terminate any requirement made by any such condition requiring or relating to the person’s being subject to supervision.
14 Effect of existing licence
A licensee who was lawfully released on an existing licence is taken to have been or to be serving the sentence of imprisonment to which the licence relates from the time of release until the sentence expires. However, if an existing licence is revoked, the person is (subject to clause 26) to be returned to prison and detained for the remainder of his or her sentence.
15 Powers of Board if breach suspected
(1) If the Board has reasonable cause to believe that a licensee has contravened a condition of an existing licence for the contravention of which the licence may be revoked, the Board may, whether or not the licence has expired:(a) by written notice served personally or by post on the licensee, require the licensee to appear before the Board at a specified time and place for the purpose of an inquiry into whether the licence should be revoked, or(b) where, in the opinion of the Board, the circumstances of the particular case so require, without revoking the licence, decide that a warrant should be issued under clause 19.(2) If a licensee fails to comply with the requirements of a notice served on the person under this clause, the Board may:(a) without revoking the existing licence, decide that a warrant should be issued under clause 19, or(b) by an order made under clause 17, revoke the existing licence.
16 Inquiry into suspected breach
(1) If a licensee attends before the Board pursuant to:(a) the requirements of a notice served under clause 15, orthe Board must immediately inquire into whether any of the conditions of the licence have been contravened.(b) a warrant issued under clause 19,(2) The licensee may make submissions to the Board against the revocation of the licence.
17 Revocation of existing licence by Board
(1) The Board may, by order in writing, revoke at any time an existing licence or direct that it be taken to have been revoked.(2) The circumstances in which the Board may revoke an existing licence or direct that it be taken to have been revoked include any of the following:(a) if the conditions of the existing licence provide that the licence may be revoked because of a contravention of any of those conditions by the licensee and that person has contravened any such term or condition,(b) if the conditions of the existing licence provide that the licence may be revoked otherwise than because of a contravention of any of those conditions and the licence is revoked in accordance with any such provision,(c) if the Board is satisfied that the licensee has been sentenced by a court to imprisonment for an offence committed while the licence was in force,(d) if the Board is authorised by clause 15 to revoke the existing licence.(3) The Board may revoke an existing licence or direct that it is to be taken to have been revoked whether or not:(a) a notice has been served under clause 15, or(b) an inquiry has been held under clause 16.(4) Where the Board makes an order under this clause, the Board must, in the order, state the reason for the revocation.(5) The Board may, in an order made under this clause, direct that an existing licence be taken to have been revoked:(a) where the existing licence is revoked because of a contravention of a condition of the licence, on such day occurring not earlier than the day on which the contravention occurred, oras the Board specifies in the order made under this clause.(b) where the existing licence is revoked because of the imposition of a sentence of imprisonment, on such day occurring not earlier than the day on which the offence to which the sentence relates was committed,(6) A direction under this clause has effect even if the existing licence concerned has expired and even if the person concerned is consequently required to serve a period of a sentence of imprisonment which would otherwise have expired.(7) For the purposes of this clause, the day on which a contravention of a condition of an existing licence occurred is to be such day as is determined by the Board.
18 Revocation of existing licence by court
(1) In sentencing a licensee to imprisonment for another offence, a court may:(a) revoke the existing licence, or(b) direct that the existing licence be taken to have been revoked on such day, occurring while the existing licence was in force but not earlier than the day on which the offence to which the sentence relates was committed, as is specified by the court in the direction.(2) A direction under this clause has effect even if the existing licence concerned has expired and even if the person concerned is consequently required to serve a period of a sentence of imprisonment which would otherwise have expired.
19 Warrants
(1) If:(a) an existing licence that was granted to a person is revoked, orthe Board may, by warrant signed by the Chairperson, Alternate Chairperson or Deputy Chairperson of the Board, authorise any police officer to arrest the person to whom the existing licence related or relates.(b) the Board makes a decision under clause 15 that a warrant should be issued for the arrest of the person to whom an existing licence was granted,(2) If a warrant is issued under this clause because of the revocation of an existing licence granted to a person, the warrant also authorises any police officer to return the person to a prison for the purpose of serving the person’s sentence of imprisonment.(3) If a warrant is issued under this clause because of a decision made under clause 15, the warrant also authorises any police officer:(a) to return the person to a prison, orthere to remain until the revocation of the warrant by the Board or the court or until the expiration of the period of 7 days commencing with the day on which the person was returned to prison or removed to a place of custody, or to court, pursuant to the warrant, whichever first occurs, for the purpose of conducting an inquiry under clause 16 to determine whether the conditions of the existing licence have been contravened.(b) if the terms of the warrant so require, to remove the person to a place of custody or to a court, or both, as specified in the warrant,(4) A warrant issued under this clause is sufficient authority for the arrest of the person to whom it relates by a police officer and the removal to and detention in prison or at another place, as the warrant may require, of the person.
20 Judicial notice of warrants
All courts and persons acting judicially are to take judicial notice of an instrument that purports to be a warrant signed in accordance with clause 19 until it is proved that the instrument is not such a warrant.
21 Notice of revocation
(1) As soon as practicable after the Board revokes an existing licence, the Board must cause a notice under this clause to be served on the prisoner to whom the licence related.(2) The notice must:(a) set a date, occurring not earlier than 14, nor later than 28, days after the date on which it is served, on which the Board is to meet for the purpose of:(i) reconsidering the revocation of the existing licence, and(ii) if the existing licence is taken to have been revoked on an earlier day than the day on which the Board decided to revoke the existing licence—determining whether the specification of the earlier day should be revoked or varied, and(b) require the prisoner to notify the Secretary of the Board, not later than 7 days before the date so set, if the prisoner intends to make representations to the Board in relation to the revocation of the licence or the specification of the earlier day, or both, and(c) be in the form prescribed by the regulations, and(d) except as provided by clause 25, be accompanied by:(i) a copy of the order which revoked the existing licence, and(ii) copies of the reports and other documents used by the Board in making the decision to revoke the existing licence and, if appropriate, to specify the earlier day.
22 Review of revocation
(1) Where a notice has been served on a prisoner under clause 21 and the prisoner has duly notified the Secretary of the Board that the prisoner intends to make representations to the Board, the Chairperson of the Board is to convene a meeting of the Board, on the date set by the notice, for the purpose of:(a) reconsidering the revocation of the existing licence, oror both, as the case requires.(b) determining whether the specification of the earlier day should be revoked or varied,(2) At the meeting of the Board convened pursuant to the notice, or at a subsequent meeting to which that meeting is adjourned or postponed, the prisoner may make submissions to the Board with respect to the revocation of the existing licence and, if appropriate, the specification of the earlier day.
23 Decision after review
(1) The Board is, after reviewing all the reports, documents and other information placed before it, to decide whether or not it should:(a) rescind the revocation of the existing licence concerned, or(b) revoke or vary the specification of the earlier day.(2) A decision under this clause has effect according to its tenor even if the existing licence concerned has expired.
24 Application to Court of Criminal Appeal
(1) Where:(a) the Board has revoked an existing licence, andthe person may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Board as to whether the information was false, misleading or irrelevant and the Court of Criminal Appeal may give such direction with respect to the information as it thinks fit.(b) the person to whom the existing licence related alleges that the existing licence was revoked as a consequence of a decision made on information that was false, misleading or irrelevant,(2) An application under this clause is not to be considered by the Court of Criminal Appeal unless it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.(3) At the hearing or determination of an application under this clause, the applicant is not entitled to appear in person, except by leave of the Court of Criminal Appeal.(4) The power of the Court of Criminal Appeal to grant the applicant leave to appear in person at the hearing or determination of an application under this clause may be exercised by any Judge of that Court, but no appeal lies to that Court against the refusal of a Judge of that Court to grant leave to so appear.
25 Security of certain information
Section 49 applies to clause 21 in the same way as it applies to sections 20 and 38.
26 Application for determination under section 13A
A person who is returned to prison following the revocation of his or her licence may, if subject to an existing life sentence, apply to the Supreme Court under section 13A for the determination of a minimum term and an additional term for the life sentence.
27 Licences granted etc before repeal of section 463 of Crimes Act 1900—validation
Any act, matter or thing done or purporting to be done by the Governor in relation to the granting or variation of an existing licence or the revocation of a former licence that:(a) was done solely on the advice of a Minister before the repeal of section 463 of the Crimes Act 1900, andis validated.(b) would have been done validly if done on the advice of the Executive Council,
28 Regulations
The regulations may prescribe conditions for existing licences.
sch 2: Am 1993 No 90, Sch 1 (10).
Schedule 2A Savings and transitional provisions relating to amending Acts
(Section 57)
Part 1 General
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of any of the following Acts:(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of any thing done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on Sentencing Amendment (Parole) Act 1996
2 Definition
In this Part:amending Act means the Sentencing Amendment (Parole) Act 1996.
3 General application of amendments to existing prisoners and parole orders
(1) An amendment made to this Act or the Prisons Act 1952 by the amending Act that applies in relation to prisoners, parole orders or any other acts, matters or things extends to:(a) persons who were prisoners immediately before the commencement of the amendment (including prisoners released on parole at that commencement), and(b) parole orders made before that commencement, andas appropriate according to the relevant provisions.(c) acts, matters or things done or omitted to be done before that commencement or existing at or before that commencement,(2) Anything done or omitted under sections 18–22 of this Act before the commencement of Subdivision 3 of Division 2 of Part 3 of this Act in relation to serious offenders is taken to have been done or omitted under the relevant provision of that Subdivision.(3) However, if any steps have been commenced under sections 18–22 of this Act before the commencement of Subdivision 3 of Division 2 of Part 3 of this Act in relation to a serious offender and the procedures under that Part in relation to those steps have not been completed at that commencement, those procedures are to be completed as if that Part had not been amended by the amending Act. This subclause has effect subject to any directions of the Board.
4 Consideration by Board
Without affecting the generality of clause 3, sections 18 (3) and 22C (3) of this Act as amended by the amending Act extend to persons who are at large at the commencement of those provisions.
5 Parole orders already made
Without affecting the generality of clause 3, a parole order in force at the commencement of Subdivision 3 of Division 2 of Part 3 of this Act in relation to a serious offender is taken to have been granted under that Subdivision.
6 Offenders Review Board
(1) On and from the commencement of the amendment of section 44 by the amending Act:(a) the body constituted with the name of Offenders Review Board continues in existence under the name of Parole Board, so that its identity is not affected, and(b) a reference in any other Act, in any instrument under an Act, or in any other document of any kind, to that body under its former name is to be read as or as including a reference to that body under its new name.(2) The amendment does not affect the tenure of office of any member of that body.(3) This clause overrides clause 9 of Schedule 2.
Part 3 Provisions consequent on Sentencing Legislation Further Amendment Act 1997
7 Definition
In this Part:amending Act means the Sentencing Legislation Further Amendment Act 1997.
8 Time limit on re-applications regarding existing life sentences
(1) The amendments made by the amending Act to section 13A apply in relation to an application made by any person under that section before the date on which the Bill for the amending Act was introduced into Parliament (as well as in relation to applications made on or after that date), unless the application had been fully dealt with (or had been fully heard, with judgment reserved) before the date on which the Bill for the Sentencing Amendment (Transitional) Act 1997 was introduced into Parliament.(2) The amendment made to section 13A (8B) by the amending Act does not apply to a person to whom a period of 2 years referred to in that subsection is applicable immediately before the commencement of that amendment. However, it does apply to such a person in respect of any decision of the Supreme Court made after that commencement to decline to determine a minimum term and an additional term.(3) The amendment made to section 13A (12) (c) by the amending Act does not apply to a person in respect of whom a direction that the person not re-apply for a period exceeding 2 years but not exceeding 3 years was in force immediately before the commencement of that amendment. However, it does apply to such a person in respect of a direction given in relation to the person after that commencement.(4) Section 22P applies in relation to the exercise by the Parole Board of any functions under Part 3 with respect to a matter it commenced to deal with before the date on which the Bill for the amending Act was introduced into Parliament (as well as in relation to matters it commenced or commences to deal with on or after that date), unless it had completed the exercise of those functions with respect to that matter before the date on which the Bill for the Sentencing Amendment (Transitional) Act 1997 was introduced into Parliament.(5) Section 62AA of the Correctional Centres Act 1952 applies in relation to the exercise by the Serious Offenders Review Council of any functions mentioned in or prescribed under that section with respect to a matter it commenced to deal with before the date on which the Bill for the amending Act was introduced into Parliament (as well as in relation to matters it commenced or commences to deal with on or after that date), unless it had completed the exercise of those functions with respect to that matter before the date on which the Bill for the Sentencing Amendment (Transitional) Act 1997 was introduced into Parliament.Editorial note—1The Bill for the amending Act was introduced into Parliament on 8.5.1997.2The Bill for the Sentencing Amendment (Transitional) Act 1997 was introduced into Parliament on 13.5.1997.
sch 2A: Ins 1996 No 144, Sch 1 (37). Am 1997 No 6, Sch 1 [11] [12]; 1997 No 8, Sch 1 [1] [2]; 1997 No 57, Sch 2.
Schedule 3 Amendment of Prisons Act 1952
(Section 58 (1))
Editorial note—
The amending provisions are not reprinted: Reprints Act 1972, section 6.
Schedule 4 Amendment of Children (Criminal Proceedings) Act 1987 and Children (Detention Centres) Act 1987
(Section 58 (2))
Editorial note—
The amending provisions are not reprinted: Reprints Act 1972, section 6.
Schedule 5 Amendment of other Acts
(Section 58 (3))
Editorial note—
Certain amending provisions are not reprinted: Reprints Act 1972, section 6.
Section 8 (Provisions to be contained in each arrangement):
(1) Section 8 (2) (c): Omit “made; and”, insert instead “made.”.(2) Section 8 (2) (d): Omit the paragraph.