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Pre Release Schemes and Leave of Absence

The content on this page was last reviewed on 03 May 2012.

1. Overview

Under s 19AZD(3), temporary release on leave of absence, and other pre-release schemes available under State or Territory law, may apply to a federal offender serving a federal sentence in that State or Territory.

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 the scheme: s 19AZD(3).

There is only one way expressly provided for in the Crimes Act 1914 (Cth) by which a federal offender serving a sentence of imprisonment may be released from custody before the expiration of their sentence. That is release on licence after application to the Attorney-General. (See Release on Parole or Licence)

2. Pre-release schemes

Prescribed pre-release schemes apply to federal offenders as though they were a State offender serving an equivalent State sentence.

State pre-release schemes that apply under s 19AZD(3) are prescribed in reg 5 of the Crimes Regulations 1990 (Cth).

Note: the Regulations only prescribe a limited number of schemes available in Queensland, South Australia, Victoria and Western Australia. No pre-release schemes are prescribed for the other jurisdictions.

The Supreme Court of Western Australia, in the case of McGillivray v Alan Piper, Chief Executive Officer of the Ministry of Justice [2000] WASCA 245 at [10], explained:

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.

2.1 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: reg 5(2)(a); and
  • being liable to detention and removal from Australia under the Migration Act 1958reg 5(2)(b).

2.2 Offenders liable to deporation

A federal offender who is subject to a deporation order under the Migration Act 1958 is not eligible to participate in a pre-release scheme if participation would make the offender liable to detention and deportation from Australia: reg 5(2A).

3. Leave of Absence

Section 19AZD(1) provides that State or Territory laws providing for leave of absence from prison 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.

4. 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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