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Welcome to the COMMONWEALTH SENTENCING DATABASE

Pre-Release Schemes and Leave of Absence

The content on this page was last reviewed on 25 March 2019.

1. Overview

Federal offenders serving a sentence of imprisonment may be released from custody before the expiration of their sentence either on a grant of licence by the Attorney-General, 1 the exercise of the royal prerogative of mercy, 2 or due to the application of s 19AZD.

Section 19AZD provides three ways for federal offenders serving a sentence of imprisonment to be released from custody before the expiration of their sentence:

  1. Where a State or Territory law allows an offender to be granted a leave of absence from prison; 3
  2. Where a State or Territory law allows for the early release of a prisoner; 4
  3. Under a prescribed State or Territory pre-release permit scheme. 5

2. Leave of Absence

Section 19AZD(1) provides that State or Territory laws providing for leave of absence from prison 6 apply to a federal offender serving a sentence of imprisonment in that State or Territory. This includes a leave of absence granted by order of a court.

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3. Early Release

Under s 19AZD(2), a State or Territory law which provides that a State or Territory offender may be released from prison:

  • up to 24 hours before the time at which his or her sentence would otherwise have ended: s 19AZD(2)(a);or
  • on the last day before a Saturday, Sunday or Public Holiday where the release day falls on such a day: s 19AZD(2)(b)

applies to a federal offender serving a sentence in that State or Territory.

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4. Pre-Release Permit Schemes

Under s 19AZD(3), prescribed pre-release schemes apply to federal offenders as though they were a State or Territory offender serving an equivalent State or Territory sentence. The application of State or Territory schemes to federal offenders is subject to any conditions relating to eligibility to participate that are specified in the regulations that prescribe that scheme. 7

State pre-release schemes that apply under s 19AZD(3) are prescribed in the Crimes Regulations 1990 (Cth) reg 5. The Regulations prescribe three schemes that operate in South Australia, 8 Western Australia 9 and the Northern Territory respectively. 10 No pre-release permit schemes are prescribed for other jurisdictions.

In McGillivray v Alan Piper, Chief Executive Officer of the Ministry of Justice [2000] WASCA 245, the Court discussed the effect of s 19AZD(3) on offenders in Western Australia. Anderson J (Kennedy ACJ and Wallwork J agreeing) explained at [9]–[10] that:

If the conduct for which the applicants were punished is a federal offence, the Crimes Act 1914 (Cth), s 19AZD(3) and reg 5 of the Crimes Regulations 1990 (Cth) apply. Section 19AZD(3) makes available to federal offenders pre-release permit schemes provided for in the legislation of the State in which they are serving a term of imprisonment. Regulation 5 provides that the home detention provisions under Pt 5 of the Sentence Administration Act 1995 (WA) are a pre-release permit scheme for the purposes of s 19AZD(3) …

 

The effect of [s 19AZD(3)] is that if the applicants are “federal offenders” under the Crimes Act, and a home detention order could have been made in their favour had they been State offenders, then a home detention order could be made in their favour under the relevant provisions of the Sentence Administration Act as if they were State offenders.

4.1 Non-citizens and pre-release schemes

Non-citizens are ineligible to participate in a pre-release scheme prescribed in the Crimes Regulations 1990 (Cth) if participation would result in the offender:

  • becoming an unlawful non-citizen; and
  • being liable to detention and removal from Australia under the Migration Act 1958 (Cth). 11

4.2 Offenders liable to deportation

A federal offender who is subject to a deportation order under the Migration Act 1958 (Cth) is not eligible to participate in a pre-release scheme if participation would make the offender liable to detention and deportation from Australia. 12 

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Notes:

  1. See Release on Parole or Licence.
  2. See Mercy.
  3. s 19AZD(1).
  4. s 19AZD(2).
  5. s 19AZD(3).
  6. See, eg, Correctional Services Act 1982 (SA) ss 27, 27A
  7. Crimes Act 1914 (Cth) s 19AZD(3).
  8. The prescribed SA scheme for releasing a prisoner to serve a period of home detention is contained in to Div 6A of Part 4 of the Correctional Services Act 1982 (SA).
  9. The prescribed WA scheme for releasing a prisoner under a re-entry release order is contained in Part 4 of the Sentence Administration Act 2003 (WA). More information about the scheme can be found in Policy Directive 47 Re-entry Release Orders.
  10. The prescribed Northern Territory scheme for releasing a prisoner on administrative home detention is contained in division 5 of part 3.3 of the Correctional Services Act 2014 (NT).
  11. Crimes Regulations 1990 (Cth) reg 5(2)(a)–(b).
  12. Crimes Regulations 1990 (Cth) reg 5(3).