Skip to content

Welcome to the COMMONWEALTH SENTENCING DATABASE

Release on Parole or Licence

The content on this page was last reviewed on 31 May 2016.

1. Overview

State Acts governing the release of prisoners on parole or licence do not apply to federal offenders. Federal offenders are, rather, subject to provisions in the Crimes Act 1914 (Cth) found in ss 19AL-19AZB. Decisions about release on parole or licence of federal offenders are made by order of the Commonwealth Attorney-General, as there is no parole board at the federal level: see below 2. Parole Decisions.

A federal offender may be released on parole by the Attorney-General at the end of the fixed non-parole period: s 19AL. Federal offenders may also be released on licence at any time during their sentence, if exceptional circumstances exist to justify the Attorney-General granting a licence:  s 19AP.

The interaction of the Commonwealth and state or territory legislation in this area is complex. Federal offenders may be concurrently serving state or territory sentences and federal sentences. Where this is the case, the Crimes Act 1914 (Cth) prescribes certain procedures to determine the date of release on parole: see below 2.4.1.

The Crimes Act 1914 (Cth) also ‘picks up’ certain state and territory laws relating to ‘clean street time’ where a parole or licence order has been revoked. This is because s 19APB(1)(a) provides that while released on parole/licence, offenders are deemed to still be under sentence, and not to have served any part of the sentence that remained to be served when they were released. However, this provision is read in light of s 19AA(2), which applies to federal offenders state and territory laws that permit a reduction in sentence for ‘clean street time’. 1

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

Where a parole order or licence has been revoked in relation to a particular offence, an offender can still be granted another parole order or licence in relation to that same offence: s 19AZB. 2 Note: Federal prisoners may also be released temporarily under the provisions relating to leave of absence and pre-release schemes: s 19AZD; see Pre-Release Schemes.

1.1 Federal Parole Amendments

On 4 October 2012, amendments contained in Schedule 7 of the Crimes Legislation Amendment (Powers and Offences) Act 2012 (Cth) came into force. From that date, the release of all federal offenders on parole is discretionary, and the legislatively-imposed five-year maximum parole period and three year maximum term for parole supervision is abolished. Instead, parole periods end on the day the sentence expires, and supervision periods are limited only by the length of the parole period.

These amendments do not apply to offenders who have already been released on parole. However, the amendments apply to all federal offenders who are sentenced before, on or after 4 October 2012, who have not been released on parole. 3 This means that a federal offender who was sentenced with a non-parole period before the commencement of the amendments will be subject to the new
arrangements. 4

In Matthews v The Queen [2013] NSWCCA 187, the appellant argued that the amendments resulted in excessive undue stress and a miscarriage of justice where the sentencing judge had alluded to parole being ‘an automatic thing’ in sentencing. The Court held at [195]:

[T]here can be no error in the exercise of discretion by reason of legislation which was not then enacted, no differently from any other fact which did not exist at the time of sentencing: Khoury [2011] NSWCCA 118; 209 A Crim R 509 at [110] (Simpson J).’

1.2 Purposes of parole

Section 19AKA sets out the purposes of parole:

Section 19AKA

The purposes of parole are the following:

(a) the protection of the community;

(b) the rehabilitation of the offender;

(c) the reintegration of the offender into the community.

Section 19AKA was introduced by Schedule 7 of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). The Explanatory Memorandum states that the purpose of the section is to ‘provide guidance in ensuring that parole conditions are consistent with the purposes of parole, for use in making decisions on release on parole, and when considering breaches of parole conditions’. 5

Return to Top

2. Parole decisions

The power to make parole decisions in relation to federal offenders lies with the Attorney-General. Decisions about parole, and the setting of conditions of release, may also be made by the Minister for Justice, 6 or delegated to senior officers of the Attorney-General’s Department. 7


Under s 19AL, a federal offender may be released on parole at the end of the fixed non-parole period. In making a parole decision under s 19AL in relation to a person, the Attorney-General may have regard to the matters listed in s 19ALA(1) that are known to the Attorney-General and relevant to the decision. This is not exhaustive: s 19ALA (2).

Section 19ALA

(1)  In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision:

(a)  the risk to the community of releasing the person on parole;

(b)  the person’s conduct while serving his or her sentence;

(c)  whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;

(d)  the likely effect on the victim, or victim’s family, of releasing the person on parole;

(e)  the nature and circumstances of the offence to which the person’s sentence relates;

(f)  any comments made by the sentencing court;

(g)  the person’s criminal history;

(h)  any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;

(i)  the behaviour of the person when subject to any previous parole order or licence;

(j)  the likelihood that the person will comply with the conditions of the parole order;

(k)  whether releasing the person on parole is likely to assist the person to adjust to lawful community life;

(l)  whether the length of the parole period is sufficient to achieve the purposes of parole;

(m)  any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.

Section 19ALA was introduced by Schedule 7 of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). The Explanatory Memorandum states that the purposes of these changes are to:

  • support procedural fairness of decisions;
  • support production of reasons for decisions;
  • inform the community at large of the roles and responsibilities of parole authorities; and
  • promote consistent and transparent parole-related outcomes. 8

2.1 Procedural Fairness

The s 19AL power must be exercised with procedural fairness: Duxerty v Minister for Justice and Customs [2002] FCA 1518, [22]. 9

In Butler v Queensland Community Corrections Board [2001] QCA 323, the Supreme Court of Queensland Court of Appeal stated in relation to decisions about parole at the state level at [19]:

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

Butler was cited with approval by the Federal Court of Australia in Duxerty v Minister for Justice and Customs [2002] FCA 1518, [22].

2.2 All federal parole decisions are discretionary

The Attorney-General must, before the end of a non-parole period imposed on a federal offender, either make or refuse to make a parole order: s 19AL(1).

The application of s 19AL(1) to offenders is affected by s 19AL(5) if the offender will be serving a state or territory sentence at the end of the non-parole period: see below 2.3.

If the Attorney-General refuses to make a parole order for a person, they must give the person a written notice, within 14 days after the refusal that:

  • informs the person of the refusal; and
  • includes a statement of reasons for the refusal; and
  • sets out the effect of paragraph (b) of s 19AL(2), which requires the Attorney-General to reconsider the making of a parole order for the person, and either make, or refuse to make such an order, within 12 months after the refusal: s 19AL(2).

The parole order must be in writing, and specify whether or not the person is to be released subject to supervision: s 19AL(3)(a)-(b). If it is proposed that the supervision period should end before the end of the person’s parole period, the parole order must specify the day on which the supervision ends: s 19AL(3)(c).

2.3 Offenders serving state or territory sentences

The end of the non-parole period for a federal offence or offences may occur while the offender is still serving a sentence for a state or territory offence or offences. Section 19AL(5) provides that if an offender will be serving a state or territory sentence on the day after the end of the non-parole period for the federal sentence, the requirement under s 19AL(1) to make, or refuse to make, a parole order does not apply in certain circumstances. These are:

Section 19AL

(5)  The Attorney?General is not required to make, or to refuse to make, a parole order under subsection (1) or paragraph (2)(b) if:

(a)  the State or Territory sentence is a life sentence for which a non?parole period has not been fixed; or

(b)  the State or Territory sentence ends after the end of the last of the federal sentences to end; or

(c)  the non?parole period for the State or Territory sentence ends after the end of the federal non?parole period; or

(d)  the State or Territory sentence ends after the end of the federal non?parole period.

(6)  However, the Attorney?General must either make, or refuse to make, a parole order before:

(a)  if paragraph (5)(c) applies (and paragraphs (5)(a) and (b) do not)—the end of the non?parole period for the State or Territory sentence; or

(b)  if paragraph (5)(d) applies (and paragraphs (5)(a), (b) and (c) do not)—the person’s expected release from prison for the State or Territory offence.

Note:          The effect of subsections (4) to (6) and subsection 19AM(2) is that a parole order may sometimes still be made for a person while the person is serving a State or Territory sentence, but the person will not be released in accordance with the parole order until the person is released from prison for the State or Territory sentence.

See further below: 2.4.2 Date of release for offenders serving state or territory sentences.

2.4 Date of release on parole

A person must be released from prison on parole in accordance with a parole order on whichever of the following days is applicable:

  1. For a parole order made before the end of the non-parole period, the earlier of the following days:
  •  the last day of the non-parole period; or
  • an earlier day (if any) specified in the parole order, not being earlier than 30 days before the end of the non-parole period: s 19AM(1)(a); Section 19AL(3A).
  1. For a parole order made after the end of the non-parole period, the later of the following days:
  • the day after the parole order is made; or
  • a later day (if any) specified in the parole order, not being later than 30 days after the order is made: s 19AM(1)(b).

A person is not to be released from prison on parole unless, before, on or after the release day, the person certifies the parole order (or a copy of the order) that he or she accepts the conditions to which the order is subject: s 19AM(3).

A person released on parole must comply with any conditions of the parole order during the parole period: see below 6.

2.4.1 Early release on parole

Section 19AL(3A) provides that the Attorney-General may specify that a person is to be released up to 30 days earlier than the end of the non-parole period. Section 19AL(3A) was introduced by Schedule 7 of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). The Explanatory Memorandum states:

New subsection 19AL(3A) explains that release on parole up to 30 days early is only available when the Attorney-General considers that in all the circumstances it is appropriate to do so. Appropriate circumstances may include situations where a specific event directly related to the prisoner’s rehabilitation is scheduled to occur in the 30 days before the expiry of the prisoner’s non-parole period. For example, it may be appropriate to release a prisoner early where the prisoner is required to attend classes for a course of study integral to the prisoner’s post-release plans. A prisoner who is eligible for release on parole between Christmas and New Year may be granted early parole to enable them to report to the parole service before the Christmas holiday period. 10

State or territory laws providing for early release on parole may also apply to federal offenders under s 19AZD(2). See further Early Release.

2.4.2 Date of release for federal offenders serving state or territory sentences

Section 19AM(2) applies to offenders who are due for federal parole but are also serving state or territory sentences. If a person is imprisoned for a state or territory offence on the day he or she would otherwise be eligible for release on parole under s 19AM(1), the person must be released from prison on federal parole in accordance with the parole order on the same day he or she is released from prison, on parole or otherwise, for the state or territory offence: s 19AM(2).

The effect of s 19AM(2) can be that a federal prisoner may have served a complete non-parole period and be subject to an order of release on parole by the Attorney-General in relation to that federal sentence, but will remain in custody until released from prison for the state/territory sentence: s 19AL.

Return to Top

3. Release on licence

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

A prisoner, or a person acting on the prisoner’s behalf, may apply to the Attorney-General in writing for release on licence, stating the exceptional circumstances which exist to justify the grant of the licence: s 19AP(2)-(3). The Attorney-General must not release a prisoner on licence unless the Attorney- General is satisfied that exceptional circumstances exist to justify the release: s 19AP(4).The licence must specify whether or not the person is to be released subject to supervision: s 19AP(6)(b). If it is proposed that the supervision period should end before the end of the person’s licence period, the licence must specify the day on which the supervision ends: s 19AP(6)(c).

A licence in relation to a person subject to a federal life sentence must specify the day on which the licence period ends. The day specified cannot be any earlier than 5 years after the person is released on licence: s 19AP(6)

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

The Attorney-General is not required to consider an application for release on licence if a previous application has been made within the past year in respect of the offender: s 19AP(5).

3.1 ‘Exceptional Circumstances’

In November 2015 a new s 19AP(4A) was introduced into the Crimes Act 1914 (Cth).[11]

Section 19AP(4A)

Without limiting the matters to which the Attorney-General may have regard for the purposes of subsection (4), the Attorney-General may have regard to:

(a)  any extensive cooperation by the person with law enforcement agencies before sentencing that the sentencing court did not take into account; or

(b)  any extensive cooperation by the person with law enforcement agencies after sentencing; or

(c)  any serious medical condition the person has that cannot adequately be treated or managed within the prison system.

Prior to the new s 19AP(4A) being introduced, Courts had commented on the meaning of ‘exceptional circumstances’ for the purposes of s 19AP(4). In Hasim v Attorney-General (Cth) [2013] FCA 1433 the Court considered an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of a decision of the Attorney-General’s delegate to refuse an application under s 19AP.

The Court noted at [62] that the term ‘exceptional circumstances’ is ‘broad, in many respects vague, and a term which has a “wide operation”’, and cited with approval the following statement of Lord Bingham of Cornhill CJ in Reg v Kelly (Edward) (C.A.) [2000] 1 QB 198, 208:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

In dismissing the application for judicial review, Greenwood J noted at [75]:

There is nothing in the Crimes Act which prohibits a decision-maker from taking into account the express integers of the Attorney-General’s governing direction in relation to the future conduct of the Director of Public Prosecutions in prosecutorial conduct concerning contended contraventions of s 233C and, having regard to the considerations already mentioned and the wide import of the term “exceptional circumstances”, the terms of the direction could not be regarded as an irrelevant consideration in informing the state of satisfaction of the decision-maker about whether exceptional circumstances subsisted. The terms and context of the direction are matters of contextual importance to be considered by the decision-maker and in any event, not excluded from consideration by the legislation (emphasis added).

In Cornwell v Attorney-General (Cth) [1993] FCA 497 Foster J considered an application for judicial review of a decision made under s 19AP in the context of whether the Minister had properly taken into account and deliberated upon questions of public interest and opinion. It was noted at [51]:

I am satisfied that the Minister in his deliberations under s 19AP was both entitled and obliged to take into consideration questions of public interest and public opinion. Not only would such considerations enter into the area of decision involving “exceptional circumstances” but they would also play a role in the determination of the ultimate question whether the Minister should, in his discretion, grant the licence applied for. He might be assisted by appropriate and relevant parole and prison reports and departmental submissions but the ultimate decision was to be made by him bearing in mind all of the material and also considerations bearing upon public interest and public opinion.

Return to Top

4. Length of parole or licence period

4.1 Length of parole period

The parole period for a person for whom a parole order has been made is the period starting in accordance with s 19AMA(2) and ending in accordance with s 19AMA(3): s 19AMA(1), s 16(1).

Section 19AMA:

(1)  For the purposes of this Part, the parole period for a person for whom a parole order has been made is the period starting in accordance with subsection (2) and ending in accordance with subsection (3).

Note: A person released on parole must comply with any conditions of the parole order during the parole period (see sections 19AN and 19AU).

(2) The person’s parole period starts at the earlier of the following times:

(a) when the person is released from prison on parole;

(b) if the person is serving a State or Territory sentence at the time the parole order is made—when the person certifies on the parole order (or a copy of the order) that he or she accepts the conditions to which the order is subject.

(3) The person’s parole period ends:

(a) at the end of the last day of any federal sentence that is, on the day of the release, being served or to be served (after deducting any remission or reduction that is applicable); or

(b) if the person has been given a federal life sentence at the later of the following times:

(i) 5 years after the person is released from prison on parole in accordance with section 19AM;

(ii)  the end of a later day (if any) specified in the parole order for the purposes of this subparagraph (not being a day earlier than 5 years after the person’s expected release from prison in accordance with the order).

 

4.2 Length of licence period

Section 16(1) sets out the applicable licence period for a person released on licence:

Section 16(1)

“licence period”, for a person who is released on licence for a federal sentence, means the period starting on the day of release on licence and ending:

(a)  if a recognizance release order has been made for the federal sentence—at the end of the day before the person is eligible for release in accordance with the recognizance release order; and

(b)  in any other case:

(i)  at the end of the last day of any federal sentence that is, on the day of the release, being served or to be served (after deducting any remission or reduction that is applicable); or

(ii)  if the person has been given a federal life sentence—at the end of the day specified in the licence as the day on which the licence period ends.

A licence in relation to a person subject to a federal life sentence must specify the day on which the licence period ends. The day specified cannot be any earlier than 5 years after the person is released on licence: s 19AP(6)

Return to Top

5. Supervision orders

An offender released on parole or licence by the Attorney-General, may be released subject to ‘supervision’. 11 While supervision is normally added to a parole or licence order, 12 it is not a mandatory requirement. 13 However, the parole order or licence must specify whether or not the person is to be released subject to supervision. 14

An offender released on parole or licence may be subject to supervision for the entire length of the parole or licence period, or until an earlier date specified by the Attorney-General.

If it is proposed that the supervision period for a person released on parole or licence should end before the end of the person’s parole or licence period, the parole order or licence must specify the day on which the supervision period ends: ss 19AL(3)(c); 19AP(6)(c).

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

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

Section 16(1)

“supervision period”, in relation to a person who is released on parole or on licence, means the period:

(a) starting when the person is released from prison on parole or licence; and

(b) ending at the earlier of the following times:

(i)  the end of the person’s parole period or licence period;

(ii)  if the parole order or licence specifies an earlier time at which the supervision period is to end—that earlier time.

Return to Top

6. Parole or licence conditions

A parole order or release on licence is made subject to all of the following:

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

6.1 Amending parole and licence conditions

Under s 19APA(1), at any time before the expiration of the parole or licence period, the Attorney-General may, by an order in writing, do any or all of the following:

  • impose additional conditions on the parole order or licence;
  • vary or revoke a condition of the parole order or licence specified under paragraph 19AN(1)(c) or 19AP(7)(c) or imposed under paragraph (a);
  • change the day on which the supervision period ends, if the supervision period has not ended.

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

6.2 Amendments to rectify errors in parole and licence orders

Under s 19APA(2), if a parole order or licence:

  • contains an error of a technical nature; or
  • has a defect of form; or
  • contains an ambiguity;

The Attorney-General may at any time, by order in writing, amend the parole order or licence to rectify the error, defect or ambiguity. An amendment of a parole order or licence under s 19APA(2) is taken to have had effect from the date of effect of the parole or licence: s 19APA(4).

Section 19APA(2) notes that for the purposes of s 19APA(2)(a), examples of an error of a technical nature include ‘a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter’.

Return to Top

7. Review of parole or licence decisions

Merits review of parole order and licence decisions is not available. Judicial review of decisions in relation to release on parole or licence is available under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 15

Return to Top

8. Revocation of parole or licence

A federal parole order or licence may be revoked in one of two ways:

  • automatically when a further sentence is imposed following the commission of an offence by the parolee/licencee during the parole/licence period: s 19AQ (see below 8.1); or
  • at the discretion of the Attorney-General, following failure of the parolee/licencee to comply with conditions of the parole order or licence: s 19AU (see below 8.2).

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

8.1 Automatic revocation

Under s 19AQ a federal parole order or licence is automatically revoked where all of the following are satisfied:

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

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

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

Where a parole order or licence is revoked, the offender is to serve the balance of the sentence which had not been served at the time that the offender was released on parole or licence (subject to reductions: see below 9): s 19AQ(5).

8.1.1 Issuing warrants of detention

Section 19AS governs the sentencing of a federal parolee/licencee for a state or territory offence committed during the period of federal parole/licence.

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

Where s 19AS(1) applies to an offender all of the following occur:

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

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

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

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

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

8.1.2 Fixing a non-parole period where parole or licence automatically revoked

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

  • s 19AR(1) applies where a federal offender released on parole or licence is sentenced to life imprisonment or imprisonment of a term of more than three years in respect of a federal offence committed during the parole/licence period ;
  • s 19AR(2) applies where a federal offender released on parole or licence is sentenced to a term of three years or less for a federal offence committed during the parole/licence period;
  • s 19AR(3) applies where a federal offender released on parole or licence is sentenced to a term of imprisonment in respect of a state or territory offence committed during the parole/licence period. 16

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

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

Note: By operation of s 19AR(6), when a court is fixing a non-parole period or making a recognizance release order under s 19AR, all of the following apply:

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

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

8.1.4 Where subsequent conviction is appealed or quashed

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

8.2 Discretionary revocation

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

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

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

Before revoking the parole order or licence, the Attorney-General must do both of the following:

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

Note: The Attorney-General need not provide written notice before revoking the parole order or licence where any of the following occur:

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

8.2.1 Arrest, summons and warrants

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

Section 19AW details procedure relating to the issuing of a warrant of detention in relation to a person whose parole order or licence has been revoked by the Attorney-General and who received due notification of the revocation. See below 8.2.3.

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

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

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

8.2.2 Right of appeal

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

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

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

8.2.3 Fixing a non-parole period

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

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

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

The discretion under s 19AW(3)(a) not to fix a non-parole period is apt to be exercised where the nature of the relevant breach of the conditions of the parole order or licence is so serious that the prescribed authority considers that the offender should not be released on parole: Dobie v The Commonwealth [2013] FCA 1224, [40]-[41] (Rangiah J).

Fixing a non-parole period of ‘zero months’ on a warrant does not have the same effect as declining to fix a non-parole period. Rather, the effect is that the offender is eligible for parole immediately following the issue of the warrant: Dobie v The Commonwealth [2013] FCA 1224, [38]-[39] (Rangiah J).

Return to Top

9. Reductions for ‘clean street time’

Under s 19APB(1)(a), when an offender is released on parole/licence, they are deemed to still be under the federal sentence, and not to have served any of the time that remained to be served when they were released on parole/licence. The effect of this is that where the parole order or licence is revoked, the offender remains liable to serve the balance of the time that was left to be served on the day they were released on parole/licence.

However, the Crimes Act 1914 (Cth)  ‘picks up’ state and territory laws relating to ‘clean street time’ where a parole or licence order has been revoked. ‘Clean street time’, as it is often called, 17 refers to time spent in the community from the date of release on parole/licence, until the date the parole order or licence is revoked. Where the state or territory legislation provides for ‘clean street time’ to be taken as ‘time served’ in relation to state/territory offences, ‘clean street time’ spent on federal parole or licence will be taken as ‘time served’ when calculating the remaining federal sentence: s 19AA(2).

Where an offender is sentenced in a state or territory where the law does not make provision for ‘clean street time’ to be taken as time served, a court must take that time into account when fixing a non-parole period under s 19AR or s 19AW: s 19AA(3).

9.1 Reduction where parole or licence automatically revoked

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

A federal offender will receive a reduction in the sentence to be served for time spent in the community on parole or licence [‘clean street time’], if so provided for in the relevant state or territory legislation: s 19AA(2).

The relevant state or territory is the one in which the offender is serving his or her sentence at the time of release on federal parole: DPP (Cth) v Wallace [2011] WASC 286, [46] (Martin CJ).

However, it may also be the state or territory in which the offender has been on parole with the permission of the relevant Commonwealth authority at the time the calculation falls to be performed:  DPP (Cth) v Wallace [2011] WASC 286, [46] (Martin CJ).

Note: The effect of s 19AQ is that the revocation of the parole order takes place on the date of sentencing for the further offence, not on the date of the commission of the further offence:  DPP (Cth) v Wallace [2011] WASC 286, [56]-[60]. This means that the period counted as time served will be the period commencing on the date of release, until the day of sentencing, not the date upon which the further offence was committed. 18

In considering the operation of the legislation, Martin CJ noted in  DPP (Cth) v Wallace [2011] WASC 286 at [59]:

However, Mr Wallace’s parole was not cancelled pursuant to the operation of s 67 of the WA State Act. Rather, his parole was revoked as a consequence of the operation of s 19AQ of the Crimes Act which expressly provides that revocation of the Commonwealth parole order takes place on the day of sentence, not the day the relevant offence was committed. It follows that pursuant to s 71(1), the period to be counted as time served is the period commencing from the day he was released on parole, until the day he was sentenced (8 March 2011), and not the period ending on the day upon which he committed the offence for which he was sentenced, namely, 11 November 2010. It follows that the clear and unequivocal language used in the relevant Commonwealth and State legislation results in the slightly different treatment of Mr Wallace as a person who was released to parole in Western Australia in respect of a Commonwealth offence and whose parole has been revoked as a consequence of the imposition of a further sentence of imprisonment, as would have been the case had Mr Wallace been released to parole for an offence against State law. Although this consequence is contrary to the evident legislative policy to which I have referred, it seems to me to be impossible to construe the language of the legislation so as to produce any different result.

Where a federal offender whose parole order or licence has been revoked does not get the benefit of s 19AA(2), [i.e. the ‘clean street time’ is not counted as time served], a court fixing a new non-parole period under s 19AR must ‘have regard’ to the period of time spent by the person on parole or licence before that parole order or licence was revoked: s 19AA(3).

For example, in Victoria, the parole authority has the discretion to give credit for ‘clean street time’. As such, there is no state law in Victoria providing that time spent on parole/licence before the parole order or licence is revoked, is taken as time served. 19 A Court sentencing in Victoria should therefore ‘have regard’ to any ‘clean street time’ when imposing a non-parole period under s 19AR. 20

Furthermore, when sentencing for the offences which result in the automatic revocation of federal parole, a court should have regard to whether the offender will be liable to serve the entire remaining balance of the original sentence, without receiving credit for ‘clean street time’. A court in this situation should have regard to this additional period of imprisonment that will result from the breach of parole, when considering the ‘totality principle’: R v Piacentino [2007] VSCA 49, [105]-[108] (Eames JA, Buchanan, Vincent, Nettle and Redlich JJA agreeing).

The Court in R v Piacentino [2007] VSCA 49 stated at [107]:

[T]otality was a relevant sentencing consideration … and … upon re-sentencing this Court must have regard to the effect of the additional period of imprisonment that would result from his breach of parole. … [T]he learned sentencing judge, applying totality, ought to have had regard to the period of one year and six months which remained to be served …

9.2 Reduction where parole or licence subject to discretionary revocation

Where a parole order or licence is revoked, the offender is to serve the balance of the sentence which had not been served at the time that the offender was released on parole or licence: s 19AW(1)(e).

A law of a state or territory that provides for the remission or reduction of state or territory sentences applies in the same way to the remission or reduction of a federal sentence in a prison of that state or territory: s 19AA(1). 21

A federal offender will receive a reduction in the sentence to be served for time spent in the community on parole or licence [‘clean street time’], if so provided for in the relevant state or territory legislation: s 19AA(2).

The relevant state or territory is the one in which the offender is serving his or her sentence at the time of release on federal parole: DPP (Cth) v Wallace [2011] WASC 286, [46] (Martin CJ).

However, it may also be the state or territory in which the offender has been on parole with the permission of the relevant Commonwealth authority at the time the calculation falls to be performed: DPP (Cth) v Wallace [2011] WASC 286, [46] (Martin CJ).

Where a federal offender whose parole order or licence has been revoked does not get the benefit of s 19AA(2) the prescribed authority fixing a new non-parole period under s 19AW must have regard to the period of time spent by the person on parole or licence before that parole order or licence was revoked: s 19AA(3).

Where a person brought before a prescribed authority under s 19AV for the issuing of a warrant of detention is dealt with in accordance with s 19AW, the unserved part of the outstanding sentence/s is to be reduced by any period of remand under s 19AW(2): s 19AW(6).

9.2.1 Case Note: Dobie v The Commonwealth [2013] FCA 1224

The applicant sought leave to appeal against the issuing of two parole orders made by delegates of the Attorney-General, which he claimed purported to fix the end date of his sentence at later than that specified by the sentencing Judge. The applicant had been sentenced to a federal term of imprisonment of five years ending on 19 October 2013, with a non-parole period of 22 months. He was released on parole on the expiration of the non-parole period. Parole was later revoked for non-compliance with parole conditions, and a warrant was issued pursuant to s 19AW of the Crimes Act 1914 (Cth), with a non-parole period of ‘zero months’.

A delegate of the Attorney-General immediately made a parole order stating that the applicant would be on parole until his sentence ended on 8 January 2014, based on the length of the sentence remaining indicated in the warrant. In calculating the outstanding sentence, the magistrate had applied s 211(2) of the Corrective Services Act 2006 (Qld) by operation of s 19AA, which provides that the time for which the prisoner was released on parole before a parole order was cancelled counts as time served under the period of imprisonment. However, the sentence was still extended by 3 months, as the time between the cancellation of the parole order and the issuing of the warrant was not taken into account by s 19AA. The applicant breached conditions of parole a second time, resulting in the issuing of a new warrant and a new release date of 12 May 2014. While the court declined to reach any conclusion on the point, as it was accepted that there was no jurisdictional basis for judicial review, the Court commented on the arguments made on behalf of the Commonwealth, stating at [52]-[55]:

On the respondent’s argument, the effect of the legislation is that by revoking parole, the delegates of the Attorney-General had effectively caused the end date for the applicant’s sentence of imprisonment to extend beyond the end date decided by the District Court Judge who sentenced the applicant.

The respondent argued that the apparent harshness of this position is ameliorated by s 19AA(1). That section provides:

A law of a State or Territory that provides for the remission or reduction of State or Territory sentences (other than such part of the law as relates to the remission or reduction of non-parole periods of imprisonment or of periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders) applies in the same way to the remission or reduction of a federal sentence in a prison of that State or Territory, being a sentence imposed after the commencement of this section.

The respondent contended that the effect of s 19AA(1) is to pick up s 211(2) of the Corrective Services Act 2006 (Qld) and allow reduction of the applicant’s sentence. Section 211(2) of the Corrective Services Act provides, relevantly, that the time for which the prisoner was released on parole before a parole order was cancelled because the prisoner failed to comply with a parole order counts as time served under the prisoner’s period of imprisonment.

The effect of the respondent’s construction is that an administrative officer can, by cancelling a parole order, cause the extension of the end date of a sentence of imprisonment imposed by a judicial officer. There is no explicit and direct statement of such an intention in the legislation. Acceptance of the respondent’s argument would require a full consideration of the statutory scheme, particularly as to how ss 19AA, 19AW and 19AZC work in combination. The interaction of the relevant provisions is complex, even convoluted. I was not referred to relevant authority on any similar provisions in earlier versions of the Crimes Act. I would be reluctant to make a decision upon the respondent’s argument, in respect of a statutory scheme dealing with the incarceration and liberty of offenders, in the absence of full argument.

The periods of time between the revocation of parole and the issuing of the warrants, particularly any delays by the Attorney-General or the prosecuting authority, may have been relevant for the Magistrates to take into account in fixing non-parole periods. They were not relevant for the Attorney-General’s delegates when making the mechanical calculations of the end dates of the applicant’s sentence for the purpose of specifying the dates on which the periods of supervision would end. Those calculations were based entirely upon the length of the outstanding terms specified by the Magistrates in the warrants. The Attorney-General is not authorised or permitted under s 19AL or any other provision of the legislation to alter the length of the outstanding terms of imprisonment, when making a parole order, whether by taking into account the period of time between the cancellation of a parole order and the issuing of a warrant, or delays in bringing the prisoner before a prescribed authority, or any other factor. 22

Return to Top

 

Notes:

  1.  Explanatory Memorandum, House of Representatives, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) 33. 
  2.   Explanatory Memorandum, House of Representatives, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) 33. 
  3.  Explanatory Memorandum, Senate, Crimes Legislation Amendment (Powers and Offences) Bill 2012 (Cth) 147-8.
  4.  Explanatory Memorandum, Senate, Crimes Legislation Amendment (Powers and Offences) Bill 2012 (Cth) 147-8. For further information see Commonwealth Attorney-General’s Department: Amendments to Commonwealth Parole – Information Circular. 
  5.  Explanatory Memorandum, House of Representatives, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (Cth) 72.  
  6.  See Duxerty v Minister for Justice and Customs [2002] FCA 1518; Jackson v Minister for Justice [2011] FCA 831, [4] (Collier J).
  7.  See Law Officers Act 1964 (Cth) s 17(2). 
  8.  Explanatory Memorandum, House of Representatives, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (Cth) 27.
  9.  See also Jackson v Minister for Justice [2011] FCA 831, [27]-[31] (Collier J).
  10.  Explanatory Memorandum, House of Representatives, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (Cth) 75.
  11.  Crimes Act 1914 (Cth) ss 19AL(3)(b), 19AP(6)(b). 
  12.  See Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 883.
  13.  Crimes Act 1914 (Cth) ss 19AL(3)(b), 19AP(6)(b). 
  14.  Crimes Act 1914 (Cth) ss 19AL(3)(b), 19AP(6)(b). 
  15.  Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006), [23.49]. See also Cornwell v Attorney-General (Cth) (1993) 45 FCR 492; Duxerty v Minister for Justice and Customs [2002] FCA 1518, [1] (Hely J); Dobie v The Commonwealth [2013] FCA 1224.
  16.  For an example of the operation of s 19AR(3), see R v Piacentino; R v Ahmad [2007] VSCA 49, [105]-[139] (Eames JA, Buchanan, Vincent, Nettle and Redlich JJA agreeing).
  17.  But note that the federal legislation does not use the term ‘clean street time’.
  18.  See also the discussion of the operation of the legislation in Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006), [24.29]. 
  19.  See R v Piacentino [2007] VSCA 49,[105] where the Court noted that ‘The parole situation under Commonwealth legislation was not subject to any executive action by the Victorian Adult Parole Board.’ See also Kate Warner, Sentencing in Tasmania (Federation Press, 2nd ed, 2002) 254, where it is stated that s 19AA(3) applies in Tasmania, where similarly to Victoria, the Parole Authority, also has a discretion to allow credit for clean street time. Warner states that ‘s 19AA(2) does not therefore provide for the deduction of “street time” for federal parolees or licensees in Tasmania’. But see DPP (Cth) v Wallace [2011] WASC 286, [38] where Martin CJ declined to come to a conclusion on whether the Victorian Parole Board had any authority to exercise the discretion in respect of federal sentences. See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 884, where Professor Freiberg, writing in the Victorian context states that ‘time already spent in the community on parole (so-called “street time”) counts as a reduction of the sentence already served. Only the outstanding part of the sentence is still owed’.
  20.  R v Novak [2003] VSCA 46, [66] (Buchanan JA, Vincent and Phillips JJA agreeing).
  21.  Note that the state or territory law cannot remit or reduce the non-parole period or pre-release period in respect of the federal sentence except as provided for by s 19AA(4). See further Remissions. 
  22.  Note: s 19AZC was repealed by sch 7 to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). It has now been replaced with s 19APB. The Explanatory Memorandum states that ‘[t]he insertion of section 19APB merely clarifies the language used in repealed section 19AZC to enhance readability of the legislation’: Explanatory Memorandum, House of Representatives, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (Cth)  72.