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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes (Administration of Sentences)
Bill 1999
Summary of Contents
Part 1 Preliminary
Part 2 Imprisonment by way of full-time detention
Division 1 Preliminary
Division 2 Segregated and protective custody
Division 3 Transfer and leave of absence
Division 4 Prisoners received from Australian Capital Territory
Division 5 Prisoners received from Norfolk Island
Division 6 Correctional centre discipline
Division 7 Classification of serious offenders
Division 8 Miscellaneous
Part 3 Imprisonment by way of periodic detention
Division 1 Preliminary
Division 2 Administration of periodic detention orders
Crimes (Administration of Sentences) Bill 1999
Summary of contents
Page
Division 3 Offences
Division 4 Miscellaneous
Part 4 Imprisonment by way of home detention
Part 5 Community service work
Division 1 Performance of community service work under community
service orders
Division 2 General provisions concerning community service work
Part 6 Parole
Division 1 Release on parole
Division 2 Parole orders for sentences of more than 3 years
Division 3 Parole orders for sentences of 3 years or less
Division 4 Parole orders in exceptional circumstances
Division 5 Miscellaneous
Part 7 Revocation by Parole Board of certain orders
Division 1 Periodic detention orders
Division 2 Home detention orders
Division 3 Parole orders
Division 4 Post-revocation procedures and rights of appeal
Division 5 Applications to Court of Criminal Appeal
Division 6 Miscellaneous
Part 8 The Parole Board
Division 1 Constitution and functions
Division 2 Inquiries
Division 3 Miscellaneous
Part 9 The Serious Offenders Review Council
Division 1 Constitution and functions
Division 2 Inquiries
Division 3 Serious Offenders Management Committee
Division 4 Miscellaneous
Part 10 The Inspector-General
Division 1 Appointment of Inspector-General and staff
Summary of contents page 2
Crimes (Administration of Sentences) Bill 1999
Summary of contents
Page
Division 2 Functions of Inspector-General
Division 3 Relationship of Inspector-General with other agencies
Division 4 Miscellaneous
Part 11 Administration
Division 1 Correctional complexes, correctional centres and periodic
detention centres
Division 2 Supervision of correctional centres
Division 3 Staff
Part 12 Engagement of contractors
Part 13 Custody of persons during proceedings
Part 14 General
Schedules
Summary of contents page 3
Passed by both Houses
New South Wales
Crimes (Administration of Sentences)
Bill 1999
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Interpretation 2
Part 2 Imprisonment by way of full-time detention
Division 1 Preliminary
4 Application of Part 8
5 Obligations of inmate 9
6 Work performed by inmates 9
7 Payments to inmates 9
8 Release from custody 9
Division 2 Segregated and protective custody
9 Definitions 10
10 Segregated custody of inmates 10
11 Protective custody of inmates 11
12 Effect of segregated or protective custody direction 11
Crimes (Administration of Sentences) Bill 1999
Contents
13 Period of segregated or protective custody 11
14 Extension of period of segregated or protective custody 11
15 Form of direction 12
16 Revocation of segregated or protective custody direction 12
17 Report to Minister on extension direction 12
18 Review of extension direction by Minister 12
19 Review of segregated or protective custody direction by
Review Council 13
20 Suspension directions by Review Council 13
21 Procedure for review of segregated or protective custody 14
22 Determination of review by Review Council 14
Division 3 Transfer and leave of absence
Subdivision 1 Transfer and leave of absence within New
South Wales
23 Transfers from one correctional centre to another 15
24 Transfers to hospital 15
25 Local leave orders 16
26 Local leave permits 17
Subdivision 2 Interstate leave of absence
27 Definitions 18
28 Corresponding interstate law 19
29 Issue of interstate leave permit 19
30 Effect of interstate leave permit 20
31 Variation or revocation of interstate leave permit 20
32 Breach of interstate leave permit 21
33 Notice to participating State and transit jurisdiction 21
34 Effect of interstate leave permit issued under
corresponding interstate law 21
35 Arrest of escaped interstate prisoners 21
36 Return of escaped interstate prisoners to State of origin 22
37 Liability of Crown for damage caused by inmate or escort 22
Subdivision 3 Miscellaneous
38 Absent inmates taken to be in custody 22
39 Powers of arrest 24
40 Certain unlawful absences not to affect length of sentence 24
41 Transfer of inmates to or through ACT 25
Division 4 Prisoners received from Australian Capital
Territory
42 Definitions 25
43 Application of Division 26
44 Conveyance and detention of prisoners from ACT 26
45 Return of prisoners to ACT 26
Contents page 2
Crimes (Administration of Sentences) Bill 1999
Contents
46 Evidentiary provision 27
Division 5 Prisoners received from Norfolk Island
47 Definitions 27
48 Conveyance and detention of prisoners from Norfolk
Island 27
49 Return of prisoners to Norfolk Island 28
50 Evidentiary provision 28
Division 6 Correctional centre discipline
51 Definitions 28
52 Hearing of charges by governor 29
53 Penalties governor may impose 30
54 Reference of offences to Visiting Justice 31
55 Hearing of charges by Visiting Justice 31
56 Penalties Visiting Justice may impose 32
57 Drug tests for inmates 33
58 Certain offences may be dealt with by Local Court 33
59 Compensation for property damage 34
60 Cumulative punishments 34
61 Record of punishments for correctional centre offences 34
62 Appeals against decisions of Visiting Justices 35
63 Double jeopardy 35
64 False or misleading statements 35
65 Offences may be dealt with by governor of any
correctional centre 36
Division 7 Classification of serious offenders
66 Application of Division 36
67 Formulation of Review Council's initial intention 36
68 Submissions by victims 36
69 Review Council to consider all submissions 37
70 Decision following review 37
71 Submissions by State 37
Division 8 Miscellaneous
72 Custody of inmates 37
73 Compulsory medical treatment 38
74 Notice to coroner of inmate's death 38
75 Confiscation of property 39
76 Sale of unclaimed property 39
77 Attendance of inmates before courts and court officers 39
78 Use of dogs in maintaining good order and security 40
79 Regulations 41
Contents page 3
Crimes (Administration of Sentences) Bill 1999
Contents
Part 3 Imprisonment by way of periodic detention
Division 1 Preliminary
80 Definitions 44
81 Obligations of offender 44
82 Duration of periodic detention order 44
Division 2 Administration of periodic detention orders
83 Duty to report to periodic detention centre 45
84 Participation in activity or work 45
85 Variation of day, time and place for periodic detention 46
86 Transfer of unruly offenders 46
87 Leave of absence for failing to report 47
88 Leave of absence for reporting late 47
89 Failure to report or reporting late extends term of sentence 48
90 Commissioner may grant exemptions from extension of
sentence 49
91 Leave of absence at direction of Commissioner 49
92 Commissioner may grant exemptions for health reasons
or on compassionate grounds 49
93 Appeal to Local Court from Commissioner's refusal to
grant leave of absence 50
94 Directions 50
Division 3 Offences
95 Offences 51
96 Defences to prosecution for certain offences 51
97 Penalty notices 53
Division 4 Miscellaneous
98 Application of Part 2 to periodic detention 54
99 Custody of offenders 54
100 Community committees 55
101 Regulations 55
Part 4 Imprisonment by way of home detention
102 Definition 57
103 Conditions governing home detention 57
104 Obligations of offender 57
105 Duration of home detention order 58
106 Regulations 58
Contents page 4
Crimes (Administration of Sentences) Bill 1999
Contents
Part 5 Community service work
Division 1 Performance of community service work
under community service orders
Subdivision 1 Preliminary
107 Definitions 59
108 Conditions governing community service work 60
109 Obligations of offender 60
110 Duration of community service order 60
Subdivision 2 Administration of community service orders
111 Assignment of officer by Commissioner 60
112 Performance of community service work 61
113 Increase in hours of community service work 61
Subdivision 3 Miscellaneous
114 Extension of period of community service order 62
115 Revocation of community service orders 62
116 Summonses and warrants for attendance 63
117 Regulations 64
Division 2 General provisions concerning community
service work
118 Definitions 64
119 Restrictions on directions regarding work to be performed 65
120 Act or omission of offender performing community service
work 65
121 Act or omission of person involved in community service
work 66
122 Limits to common law damages for injury to offender 66
123 Disclosure of material facts about health 67
124 Settlement of claims 68
Part 6 Parole
Division 1 Release on parole
125 Application of Part 69
126 Eligibility for release on parole 69
127 Parole order necessary for release 69
128 Conditions governing parole 69
129 Obligations of offender 70
130 Revocation of parole order before release 70
131 Release under parole order 71
Contents page 5
Crimes (Administration of Sentences) Bill 1999
Contents
132 Sentence continues to run while offender on parole 71
133 Parole order not invalidated by failure to comply with
procedural requirements 71
Division 2 Parole orders for sentences of more than 3
years
Subdivision 1 General
134 Application of Division 71
135 General duty of Parole Board 72
Subdivision 2 Offenders other than serious offenders
136 Application of Subdivision 72
137 Consideration by Parole Board 73
138 Decision of Parole Board 73
139 Notice of refusal of parole 74
140 Review by Parole Board 74
141 Decision following review 74
Subdivision 3 Serious offenders
142 Application of Subdivision 75
143 Preliminary consideration by Parole Board 75
144 Formulation of Parole Board's initial intention 76
145 Notice to victims of initial intention to make parole order 76
146 Notice to offender of initial intention not to make parole
order 77
147 Submissions by offender and victims 79
148 Principles on which Parole Board's final decision to be
made 79
149 Decision following review 79
150 Decision where no review 80
151 Day of release 80
152 Reasons to be provided for rejection of Review Council's
advice 81
153 Submissions by State 81
154 Matters to be considered concerning certain serious
offenders 82
Subdivision 4 Applications to Court of Criminal Appeal
155 Application to Court of Criminal Appeal by offender 82
156 Application to Court of Criminal Appeal by State 83
157 Appearance in person of offender 83
Division 3 Parole orders for sentences of 3 years or less
158 Effect of parole orders made by court 84
159 Making of parole orders by Parole Board 84
Contents page 6
Crimes (Administration of Sentences) Bill 1999
Contents
Division 4 Parole orders in exceptional circumstances
160 Parole orders in exceptional circumstances 84
Division 5 Miscellaneous
161 Regulations 85
Part 7 Revocation by Parole Board of certain orders
Division 1 Periodic detention orders
162 Conduct of inquiry into suspected breach of obligations 86
163 Revocation of periodic detention order 86
164 Effect of revocation order 87
165 Parole Board may order home detention 87
Division 2 Home detention orders
166 Conduct of inquiry into suspected breach of obligations 88
167 Revocation of home detention order 88
168 Effect of revocation order 89
Division 3 Parole orders
169 Conduct of inquiry into suspected breach of obligations 89
170 Revocation of parole order 89
171 Effect of revocation order 90
172 Request by State to revoke parole order 90
Division 4 Post-revocation procedures and rights of
appeal
173 Notice of revocation 91
174 Review of revocation 92
175 Decision after review 92
Division 5 Applications to Court of Criminal Appeal
176 Application to Court of Criminal Appeal by offender 93
177 Application to Court of Criminal Appeal by State 93
178 Appearance in person of offender 94
Division 6 Miscellaneous
179 Consequential revocation of other orders 94
180 Offenders to attend Parole Board when called on 95
181 Warrants committing offenders to correctional centres 95
182 Functions may be exercised after order has expired 96
Contents page 7
Crimes (Administration of Sentences) Bill 1999
Contents
Part 8 The Parole Board
Division 1 Constitution and functions
183 Constitution of Parole Board 97
184 Divisions of Parole Board 97
185 Functions of Parole Board 98
Division 2 Inquiries
186 Power to require attendance of witnesses and production
of documents 98
187 Examination by judicial member 99
188 Offences 99
189 Misconduct before Parole Board 99
190 Rights of parties making submissions 100
191 Witnesses' expenses 100
Division 3 Miscellaneous
192 Report to Minister 100
193 Information concerning offenders and correctional centres 101
194 Security of certain information 102
Part 9 The Serious Offenders Review Council
Division 1 Constitution and functions
195 Constitution of Review Council 103
196 Divisions of Review Council 103
197 Functions of Review Council 104
198 Matters to be considered in relation to certain advisory
functions 104
199 Matters to be considered in relation to offenders serving
existing life sentences 105
Division 2 Inquiries
200 Power to require attendance of witnesses and production
of documents 106
201 Examination by judicial member 107
202 Offences 107
203 Misconduct before Review Council 107
204 Rights of parties making submissions 108
205 Witnesses' expenses 108
Division 3 Serious Offenders Management Committee
206 Establishment of Management Committee 108
207 Establishment of Management Committee subcommittees 109
Contents page 8
Crimes (Administration of Sentences) Bill 1999
Contents
208 Delegation to Management Committee of Review Council
functions 109
Division 4 Miscellaneous
209 Annual reports 109
Part 10 The Inspector-General
Division 1 Appointment of Inspector-General and staff
210 Inspector-General 110
211 Staff 110
Division 2 Functions of Inspector-General
212 Definitions 111
213 Principal functions of Inspector-General 111
214 Limitations on Inspector-General's functions 112
215 Powers of Inspector-General 113
216 Discretion of Inspector-General to investigate complaints 114
Division 3 Relationship of Inspector-General with other
agencies
217 Relationship with Ombudsman regarding investigations 115
218 Relationship with ICAC regarding investigations 115
219 Functions of Inspector-General under Protected
Disclosures Act 1994 116
Division 4 Miscellaneous
220 Reports of Inspector-General 116
221 Obstruction of Inspector-General 116
222 Review of Part 117
223 Expiration of position of Inspector-General 117
Part 11 Administration
Division 1 Correctional complexes, correctional centres
and periodic detention centres
224 Correctional complexes 118
225 Correctional centres 118
226 Periodic detention centres 118
Division 2 Supervision of correctional centres
227 Visiting Justices 119
228 Official Visitors 119
Contents page 9
Crimes (Administration of Sentences) Bill 1999
Contents
229 Powers of Judges and Magistrates to visit and examine 120
230 Special inquiries 120
Division 3 Staff
231 Staff generally 121
232 Commissioner 122
233 Governors of correctional centres 122
234 Commissioned and non-commissioned correctional
officers 122
235 Functions of correctional officers 123
236 Oath to be taken by correctional officers 123
Part 12 Engagement of contractors
237 Purpose for which contractors may be engaged 124
238 Management agreements 124
239 Submanagement agreements 125
240 Authorisation of correctional centre staff 125
241 Status of staff at correctional centre managed under
agreement 126
242 Monitoring 127
243 Community advisory councils 128
244 Corrections Health Service 128
245 Investigation of corruption 129
246 Administrative complaints 129
247 Freedom of information 130
248 Minimum standards 130
Part 13 Custody of persons during proceedings
249 Definitions 132
250 Transport and detention of persons in custody 133
251 Designated officer 133
252 Places where persons in custody may be kept during
transfer 134
253 Part subject to Children (Detention Centres) Act 1987 134
Part 14 General
254 Extension of sentence following unlawful absence from
custody 135
255 Effect of extension of sentence 135
256 Victims Register 136
257 Disclosure of information 137
258 Supreme Court to review list of persons on remand who
are in custody 137
Contents page 10
Crimes (Administration of Sentences) Bill 1999
Contents
259 Service of notices 138
260 Evidentiary certificates 138
261 Address of warrant 139
262 Effect of certain warrants 139
263 Exclusion of personal liability 139
264 Wearing or possession of correctional officer uniform by
others 140
265 Impersonating correctional officer 141
266 Proceedings for offences 141
267 Records and information available for research work 141
268 Funds payable to certain organisations 142
269 Sheriff's functions preserved 142
270 Prerogative of mercy preserved 142
271 Regulations 142
272 Savings, transitional and other provisions 142
273 Review of Act 142
Schedules
1 Parole Board 143
2 Serious Offenders Review Council 151
3 Inspector-General 158
4 Official Visitors 160
5 Savings, transitional and other provisions 163
Contents page 11
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 1999
New South Wales
Crimes (Administration of Sentences)
Bill 1999
Act No , 1999
An Act to consolidate and amend the law with respect to the administration of
certain sentences; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Crimes (Administration of Sentences) Bill 1999
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Crimes (Administration of Sentences) Act 1999.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Interpretation
(1) In this Act:
Commissioner means the Commissioner of Corrective Services.
community service order means an order in force under section 8 of
the Crimes (Sentencing Procedure) Act 1999 or section 79 of the Fines
Act 1996.
community service work means any service or activity approved by
the Minister, and includes participation in personal development,
educational or other programs.
convicted inmate means a person referred to in section 4 (1) (a), (b) or
(c).
correctional centre means:
(a) any premises declared to be a correctional centre by a
proclamation in force under section 225, and
(b) any police station or court cell complex in which an offender is
held in custody in accordance with this or any other Act,
but in Part 2 does not include a periodic detention centre, except to the
extent provided by the regulations referred to in section 98.
correctional complex means any premises declared to be a correctional
complex by virtue of a proclamation in force under section 224.
correctional officer means a person who is employed within the
Department as a correctional officer, as referred to in section 231.
Page 2
Crimes (Administration of Sentences) Bill 1999 Clause 3
Preliminary Part 1
court means:
(a) the Supreme Court, the Court of Criminal Appeal, the Land and
Environment Court, the Industrial Relations Commission, the
District Court or a Local Court, or
(b) any other court that, or person who, exercises criminal
jurisdiction,
but, subject to the Children (Criminal Proceedings) Act 1987, does not
include the Children's Court or any other court that, or person who,
exercises the jurisdiction of the Children's Court.
Department means the Department of Corrective Services.
detention period means a period that occurs during the term of an
offender's sentence, being a period that, subject to any order under
section 85:
(a) in the case of the first such period:
(i) begins at 8.30 am on the day specified in that regard in
the relevant periodic detention order, and
(ii) ends at 4.30 pm on the day following the day so
specified, and
(b) in the case of each subsequent such period:
(i) begins each week at 7.00 pm on the day of the week
specified in that regard in the relevant periodic detention
order, and
(ii) ends at 4.30 pm on the second day following the day so
specified,
but does not include any such period that includes the whole or any
part of Christmas Day, Good Friday or Easter Sunday.
drug means:
(a) a prohibited drug or prohibited plant within the meaning of the
Drug Misuse and Trafficking Act 1985, or
(b) any other substance declared by the regulations to be a drug for
the purposes of this Act.
exercise a function includes perform a duty.
full-time detention means detention in a correctional centre, other than
periodic detention within the meaning of Part 3.
function includes a power, authority or duty.
governor means:
Page 3
Clause 3 Crimes (Administration of Sentences) Bill 1999
Part 1 Preliminary
(a) in relation to a correctional centre, the governor of the
correctional centre, or
(b) in relation to a periodic detention centre, the governor of the
correctional centre who is responsible for the periodic
detention centre by virtue of a proclamation referred to in
section 226 (3),
and includes any person who is for the time being in charge of the
correctional centre or periodic detention centre, as the case may be.
home detention order means an order in force under section 7 of the
Crimes (Sentencing Procedure) Act 1999.
inmate means a person to whom Part 2 applies.
Inspector-General means the Inspector-General appointed under
Part 10.
interstate leave permit means a permit referred to in section 29.
judicially qualified person means:
(a) any Judge or retired Judge of a New South Wales court or the
Federal Court, or
(b) any Magistrate or retired Magistrate, or
(c) any person qualified to be appointed as a Judge of a New South
Wales court.
law enforcement agency means the Police Service, the Independent
Commission Against Corruption, the New South Wales Crime
Commission or the Police Integrity Commission.
local leave order means an order referred to in section 25.
local leave permit means a permit referred to in section 26.
managed correctional centre means a correctional centre that is for
the time being managed under a management agreement.
management agreement means an agreement referred to in section
238.
management company means a corporation with which the
Commissioner has entered into a management agreement under which
the corporation manages one or more correctional centres.
non-parole period has the same meaning as it has in the Crimes
(Sentencing Procedure) Act 1999.
Page 4
Crimes (Administration of Sentences) Bill 1999 Clause 3
Preliminary Part 1
offender, where occurring elsewhere than in Part 3, 4 or 5, means a
person who is subject to a sentence of imprisonment, and includes an
inmate within the meaning of Part 2 and an offender within the
meaning of Part 3 or 4.
offender submission means a submission made to the Review Council
or the Parole Board, for the purposes of this Act, by an inmate of a
correctional centre.
Official Visitor means an Official Visitor appointed under section 228.
Parole Board means the Parole Board constituted by section 183.
parole order means an order in force under:
(a) section 138, 141, 149, 150, 159 or 160 of this Act, or
(b) section 50 of the Crimes (Sentencing Procedure) Act 1999.
periodic detention, in relation to an offender, means detention in
prison for such number of detention periods as there are in the term of
the offender's sentence.
periodic detention centre means any correctional centre declared to be
a periodic detention centre by a proclamation in force under section
226.
periodic detention order means an order in force under section 6 of
the Crimes (Sentencing Procedure) Act 1999 or section 89 of the Fines
Act 1996.
probation and parole officer means a person who is employed within
the Department as a probation and parole officer, as referred to in
section 231.
Review Council means the Serious Offenders Review Council
constituted by section 195.
sentence means a sentence of imprisonment.
sentencing court, in relation to an offender undergoing a penalty
imposed by a court, means the court by which the penalty was
imposed.
serious offender means:
(a) an offender who is serving a sentence for life, or
(b) an offender who is serving a sentence for which a non-parole
period has been set in accordance with Schedule 1 to the
Crimes (Sentencing Procedure) Act 1999, or
Page 5
Clause 3 Crimes (Administration of Sentences) Bill 1999
Part 1 Preliminary
(c) an offender who is serving a sentence (or one of a series of
sentences of imprisonment) where the term of the sentence (or
the combined terms of all of the sentences in the series) is such
that the offender will not become eligible for release from
custody, including release on parole, until he or she has spent
at least 12 years in custody, or
(d) an offender who is for the time being required to be managed
as a serious offender in accordance with a decision of the
sentencing court, the Parole Board or the Commissioner, or
(e) an offender who has been convicted of murder and who is
subject to a sentence in respect of the conviction, or
(f) an offender who belongs to a class of persons prescribed by the
regulations to be serious offenders for the purposes of this
definition.
submanagement agreement means an agreement referred to in
section 239.
submanagement company means a corporation with which a
management company has entered into a submanagement agreement
under which the corporation manages one or more correctional centres
on behalf of the management company.
victim of a serious offender means a person whose name is recorded
in the Victims Register as a victim of that offender.
Victims Register means the register kept under section 256 of the
names of victims of offenders who have requested that they be given
notice of the possible parole of the offender concerned.
victim submission means a submission made to the Review Council
or the Parole Board, for the purposes of this Act, by a victim of a
serious offender.
Visiting Justice means a Visiting Justice appointed under section 227.
(2) In this Act:
(a) a reference to a sentence to which an offender is subject
includes a reference to a sentence that has been imposed but is
yet to commence, and
(b) a reference to the term of a sentence is, if the term is varied
under this or any other Act, a reference to the term as so varied,
and
Page 6
Crimes (Administration of Sentences) Bill 1999 Clause 3
Preliminary Part 1
(c) a reference to a non-parole period of a sentence is, if the period
is varied under this or any other Act, a reference to the period
as so varied, and
(d) a reference to a court that has sentenced an offender, made an
order or given a direction includes a reference to the same court
differently constituted and (in the case of a Local Court)
includes a reference to any other Local Court.
(3) Notes in the text of this Act do not form part of this Act.
Page 7
Clause 4 Crimes (Administration of Sentences) Bill 1999
Part 2 Imprisonment by way of full-time detention
Division 1 Preliminary
Part 2 Imprisonment by way of full-time detention
Division 1 Preliminary
4 Application of Part
(1) This Part applies to:
(a) any person the subject of a warrant under section 62 of the
Crimes (Sentencing Procedure) Act 1999 by which a court has
committed the person to a correctional centre to serve a
sentence or the remainder of a sentence by way of full-time
detention, other than a person who is on release on parole, and
(b) any person the subject of a warrant under section 87 of the
Fines Act 1996 by which the State Debt Recovery Office has
committed the person to a correctional centre to serve a
sentence by way of full-time detention, and
(c) any person the subject of a warrant under section 181 of this
Act by which the Parole Board has committed the person to a
correctional centre to serve the remainder of a sentence by way
of full-time detention, and
(d) any person the subject of a warrant or order by which a court
has committed the person to a correctional centre on remand in
connection with proceedings for an offence committed, or
alleged to have been committed, by the person, and
(e) any person the subject of a warrant or order by which a court or
other competent authority has committed the person to a
correctional centre otherwise than as referred to in paragraph
(a), (b), (c) or (d).
(2) This Part does not apply to a person who is detained in a correctional
centre in accordance with the Intoxicated Persons Act 1979.
(3) In this Part, inmate means a person to whom this Part applies and
convicted inmate means a person referred to in subsection (1) (a), (b)
or (c).
Page 8
Crimes (Administration of Sentences) Bill 1999 Clause 5
Imprisonment by way of full-time detention Part 2
Preliminary Division 1
5 Obligations of inmate
The obligations of an inmate while serving a sentence by way of full-
time detention are:
(a) to comply with such requirements of this Part and the
regulations as apply to the inmate, and
(b) to comply with the requirements of any directions given to the
inmate under this Part.
6 Work performed by inmates
(1) The governor of a correctional centre may make an order directing any
convicted inmate in the correctional centre to carry out community
service work suitable to the inmate's capacity.
(2) Such convicted inmates or such classes or groups of convicted inmates
as the Commissioner may from time to time determine may be directed
to carry out community service work outside the correctional centre in
which they are imprisoned.
7 Payments to inmates
(1) The Commissioner may, out of money provided by Parliament or
otherwise legally available, make payments to inmates for any reason
(including for work done).
(2) Payment for work done by inmates of a managed correctional centre
may not be made by the management company for the correctional
centre otherwise than in accordance with a scheme approved by the
Commissioner.
8 Release from custody
(1) Unless sooner released on parole, an inmate who is serving a sentence
by way of full-time detention (the current sentence) is to be released
from custody on the day the sentence expires (the release date), as
determined in accordance with Division 1 of Part 4 of the Crimes
(Sentencing Procedure) Act 1999 but subject to any variation of that
term under this or any other Act.
(2) An inmate may be released from custody:
(a) at any time on the release date for the current sentence, or
(b) if the release date for the current sentence is a Saturday, Sunday
or public holiday and the inmate so requests, at any time during
the next day that is not a Saturday, Sunday or public holiday.
Page 9
Clause 8 Crimes (Administration of Sentences) Bill 1999
Part 2 Imprisonment by way of full-time detention
Division 1 Preliminary
(3) This section does not apply to an inmate who, as at the release date for
the current sentence, is subject to another sentence that is being served
by way of full-time detention:
(a) where the other sentence commenced before, but will not end
until after, the release date for the current sentence, or
(b) where the other sentence commences immediately after the
release date for the current sentence.
Division 2 Segregated and protective custody
9 Definitions
In this Division:
extension direction means a direction referred to in section 14.
protective custody direction means a direction referred to in section
11, and includes any extension of the direction effected by an
extension direction.
segregated custody direction means a direction referred to in section
10, and includes any extension of the direction effected by an
extension direction.
suspension direction means a direction referred to in section 20 (1)
(a).
10 Segregated custody of inmates
(1) The Commissioner may direct that an inmate be held in segregated
custody if of the opinion that the association of the inmate with other
inmates constitutes or is likely to constitute a threat to:
(a) the personal safety of any other person, or
(b) the security of a correctional centre, or
(c) good order and discipline within a correctional centre.
(2) The governor of a correctional centre may exercise the
Commissioner's functions under this section in relation to the
correctional centre and, on each occasion he or she does so, must
notify the Commissioner of that fact.
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11 Protective custody of inmates
(1) The Commissioner may direct that an inmate be held in protective
custody if of the opinion that the association of the inmate with other
inmates constitutes or is likely to constitute a threat to the personal
safety of the inmate.
(2) The Commissioner may also direct that an inmate be held in protective
custody if the inmate requests the Commissioner in writing to do so.
(3) The governor of a correctional centre may exercise the
Commissioner's functions under this section in relation to the
correctional centre and, if he or she does so, must notify the
Commissioner of that fact.
12 Effect of segregated or protective custody direction
(1) An inmate in respect of whom a segregated or protective custody
direction is given is to be detained:
(a) in isolation from all other inmates, or
(b) in association only with such other inmates as the
Commissioner may determine.
(2) An inmate who is held in segregated or protective custody:
(a) is not to suffer any reduction of diet, and
(b) is not to be deprived of any rights or privileges other than those
determined by the Commissioner, either generally or in a
particular case.
13 Period of segregated or protective custody
(1) An inmate is not to be held in segregated or protective custody for
longer than 14 days unless the Commissioner otherwise directs.
(2) The Commissioner must not direct that an inmate be held in segregated
or protective custody for a continuous period of more than 3 months,
except in accordance with section 14.
14 Extension of period of segregated or protective custody
(1) The Commissioner may from time to time direct that an inmate's
segregated or protective custody be extended, but only:
(a) in the case of segregated custody, on the grounds referred to in
section 10, or
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Clause 14 Crimes (Administration of Sentences) Bill 1999
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Division 2 Segregated and protective custody
(b) in the case of protective custody, on the grounds referred to in
section 11.
(2) An extension must not exceed 3 months at a time.
(3) A direction for an extension of segregated or protective custody may
differ in its terms from the direction it extends.
15 Form of direction
A segregated custody direction, protective custody direction or
extension direction must be in writing and must include the grounds
on which it is given.
16 Revocation of segregated or protective custody direction
(1) The Commissioner may, at any time, revoke a segregated or protective
custody direction.
(2) The Commissioner must revoke a protective custody direction given
at the request of an inmate if the inmate requests the Commissioner in
writing to revoke it.
17 Report to Minister on extension direction
(1) As soon as practicable after making an extension direction, the
Commissioner must give written notice of that fact to the Minister,
giving reasons for the extension, if:
(a) the extension will result in the inmate being subject to a total
continuous period of segregated or protective custody
exceeding 6 months, or
(b) the inmate has already been subject to a total continuous period
of segregated or protective custody exceeding 6 months.
(2) This section does not apply to an extension of an inmate's protective
custody given at the request of the inmate.
18 Review of extension direction by Minister
The Minister may at any time confirm, amend or revoke an extension
direction:
(a) whether or not a report on the direction has been forwarded to
the Minister, and
(b) whether or not the direction was given at the request of an
inmate, and
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(c) regardless of who gave the segregated or protective custody
direction it extends.
19 Review of segregated or protective custody direction by Review
Council
(1) An inmate whose total continuous period of segregated or protective
custody exceeds 14 days may apply to the Review Council for a
review of the relevant segregated or protective custody direction.
(2) The application is to be in writing and is to include the inmate's
reasons for making the application.
(3) The Review Council must review the direction unless subsection (4)
applies.
(4) The Review Council may reject the application if the application does
not, in the opinion of the Review Council, disclose substantial grounds
for a review.
(5) This section applies regardless of who gave the relevant segregated or
protective custody direction.
20 Suspension directions by Review Council
(1) The Chairperson of the Review Council may give a direction for:
(a) the suspension of an inmate's segregated or protective custody,
or
(b) the removal of an inmate to a different correctional centre.
(2) A suspension direction may be given at any time after an application
for a review is made and before it is determined.
(3) While a suspension direction is in force, the inmate is not to be held in
segregated or protective custody unless a new segregated or protective
custody direction is given.
(4) The Chairperson may at any time vary or revoke a suspension
direction.
(5) A suspension direction does not revoke a segregated or protective
custody direction.
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(6) A direction for the removal of an inmate to a different correctional
centre may be given:
(a) if the Chairperson considers that the inmate's removal would
facilitate the review of the segregated or protective custody
direction, or
(b) for any other reason that the Chairperson thinks fit.
21 Procedure for review of segregated or protective custody
(1) In determining any matter relating to the segregated or protective
custody of an inmate, the Review Council is not bound by the rules of
evidence but may inform itself of any matter in such manner as it
thinks appropriate.
(2) The Review Council must cause notice of any hearing in relation to a
review to be given to the inmate who applied for the review.
(3) If the inmate so wishes, the Review Council must allow the inmate to
be present, and to be heard, at the hearing.
(4) The inmate may be represented by a legal practitioner chosen by the
inmate or, if the Review Council so approves, by some other person
chosen by the inmate.
(5) Division 2 of Part 9 applies to the conduct of a review by the Review
Council under this Division.
22 Determination of review by Review Council
(1) In reviewing a segregated or protective custody direction, the Review
Council must take the following matters into account:
(a) whether the direction was made in accordance with this
Division,
(b) whether the direction was reasonable in the circumstances,
(c) whether the direction was necessary to secure the personal
safety of the inmate or any other person,
(d) the security of, and the preservation of good order and
discipline within, the relevant correctional centre,
(e) the interests of the public.
(2) In determining an application for review, the Review Council may
confirm, amend or revoke the segregated or protective custody
direction to which the application relates.
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Division 3 Transfer and leave of absence
Subdivision 1 Transfer and leave of absence within New South
Wales
23 Transfers from one correctional centre to another
The Commissioner may order that an inmate be transferred from one
correctional centre to another:
(a) because the correctional centre is being or is about to be
repaired, altered, enlarged or rebuilt, or
(b) because of an outbreak or threatened outbreak in the
correctional centre of a contagious or infectious disease, or
(c) because the correctional centre has ceased or is about to cease
to be a correctional centre, or
(d) because the correctional centre is overcrowded, or
(e) because inmates in the correctional centre need to be separated
in compliance with the requirements of the regulations, or
(f) because of any other reason specified in the order.
24 Transfers to hospital
(1) The Commissioner may order that an inmate be transferred:
(a) to a hospital (including a hospital that is or forms part of a
correctional centre or correctional complex), or
(b) to some other place specified in the order,
if of the opinion that it is necessary or desirable for the inmate to
receive medical attention there.
(2) While the inmate is at the hospital or other place, the Commissioner
may direct a correctional officer to take charge of the inmate.
(3) An inmate who is transferred to a hospital may be discharged from the
hospital on the certificate of the medical superintendent or other person
in charge of the hospital.
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(4) On being discharged from the hospital or other place, the inmate must
immediately be returned:
(a) to the correctional centre from which the inmate was
transferred, or
(b) to such other correctional centre as the Commissioner may
direct.
(5) The Commissioner's functions under this section may be exercised in
relation to a correctional centre by the governor of the correctional
centre.
25 Local leave orders
(1) The Commissioner may make an order (a local leave order) requiring
an inmate to be taken from a correctional centre to any place in the
State:
(a) on such conditions and for such period as may be specified in
the order, and
(b) for such purpose as the Commissioner considers appropriate.
(2) Without limiting subsection (1) (b), the purposes for which a local
leave order may be made include the following:
(a) enabling an inmate to be interviewed by a police officer, or by
an officer of a law enforcement agency, in connection with the
commission of an offence in a correctional centre, whether or
not the offence was committed or is suspected of having been
committed by the inmate,
(b) enabling an inmate to assist in the administration of justice.
(3) The conditions to which a local leave order is subject must include
such conditions as are required by the regulations to be included in
such an order.
(4) Subject to subsection (3), the Commissioner may, at any time:
(a) vary or omit any condition of a local leave order, or
(b) substitute or add new conditions to a local leave order, or
(c) revoke a local leave order.
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26 Local leave permits
(1) The Commissioner may issue a permit (a local leave permit) allowing
an inmate to be absent from a correctional centre:
(a) on such conditions and for such period as may be specified in
the permit, and
(b) for such purpose as the Commissioner considers appropriate.
(2) Without limiting subsection (1) (b), the purposes for which a local
leave permit may be issued include the following:
(a) enabling an inmate to be interviewed by a police officer, or by
an officer of a law enforcement agency, in connection with the
commission of an offence in a correctional centre, whether or
not the offence was committed or is suspected of having been
committed by the inmate,
(b) enabling an inmate to assist in the administration of justice,
(c) enabling an inmate to attend a funeral service or burial of a
member of the inmate's immediate or extended family,
(d) enabling an inmate to be present at an occasion of special
significance to the inmate's immediate or extended family,
(e) enabling an inmate to visit any member of the inmate's
immediate family who is suffering serious illness or disability,
(f) enabling an inmate to apply for work or attend an interview
with an employer or prospective employer,
(g) enabling an inmate to attend a place of education or training in
connection with any course of education or training,
(h) enabling an inmate to engage in employment specified in the
permit,
(i) enabling an inmate to have weekend leave,
(j) enabling an inmate to reside at a transitional centre (that is,
premises managed or approved by the Commissioner for the
purpose of accommodating inmates prior to their release from
custody),
(k) enabling an inmate to attend tuition or perform work in
connection with a course of education or training being
undertaken by the inmate,
(l) in the case of a female inmate who is the mother of a young
child or young children, enabling the inmate to serve her
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sentence with her child or children in an appropriate
environment.
(3) The conditions to which a local leave permit is subject must include
such conditions as are required by the regulations to be included in
such a permit.
(4) Subject to subsection (3), the Commissioner may, at any time:
(a) vary or omit any condition of a local leave permit, or
(b) substitute or add new conditions to a local leave permit, or
(c) revoke a local leave permit.
Subdivision 2 Interstate leave of absence
27 Definitions
In this Subdivision:
corresponding Commissioner, in relation to a participating State,
means the officer responsible for the administration of correctional
centres (however described) in the participating State.
corresponding interstate law means a law that is declared to be a
corresponding interstate law for the purposes of this Subdivision by an
order published under section 28.
escape, in relation to an interstate prisoner temporarily released from
lawful custody, includes fail to return to lawful custody at the end of
the time for which the prisoner has been released.
escorted custody, in relation to an interstate prisoner, means in the
custody of an interstate escort under section 30.
interstate escort, in relation to a participating State, means:
(a) a correctional officer (however described) or a police officer of
that State, or
(b) a person who is authorised to have the custody of an interstate
prisoner under a permit issued in accordance with the
corresponding interstate law of that State, or
(c) a person who is appointed by the corresponding Commissioner
of that State by an instrument in writing to be an escort for the
purpose of escorting an interstate prisoner to that State.
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interstate prisoner means a person who is in New South Wales under
the authority of a permit issued under a corresponding interstate law.
participating State means any State in which a corresponding interstate
law is in force.
State includes the Australian Capital Territory and the Northern
Territory.
unescorted custody, in relation to an interstate prisoner, means leave
within New South Wales in circumstances where:
(a) the leave is authorised by a permit issued under a corresponding
interstate law, and
(b) no interstate escort has been appointed to escort the prisoner
while within New South Wales, and
(c) the corresponding interstate law provides that the prisoner is
taken to be in the custody of the corresponding Commissioner
or another official of the participating State while in New South
Wales.
28 Corresponding interstate law
(1) The Governor may, by order published in the Gazette, declare that a
law of a State other than New South Wales is a corresponding
interstate law for the purposes of this Subdivision.
(2) Such an order is to be made only if the Governor is satisfied that the
law substantially corresponds with the provisions of this Subdivision.
29 Issue of interstate leave permit
(1) The Commissioner may issue an interstate leave permit to an inmate
of a correctional centre for leave to travel to and from, and remain in,
a participating State for a specified period:
(a) if the inmate does not have a high security classification, on any
grounds that the Commissioner considers appropriate, or
(b) if the inmate has a high security classification, only if the leave
is for medical treatment or for some compassionate purpose.
(2) In particular, the Commissioner may issue an interstate leave permit to
an inmate who is an Aboriginal person if satisfied that the purpose of
the leave is:
(a) to enable the inmate to attend a funeral service or burial of a
member of the inmate's immediate or extended family, or
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(b) to enable the inmate to be present at an occasion of special
significance to the inmate's immediate or extended family.
(3) The period specified in an interstate leave permit must not exceed 7
days.
(4) An interstate leave permit is subject to such conditions (including
conditions relating to the escort of the inmate) as the Commissioner
specifies in the permit or as may be prescribed by the regulations.
(5) The Commissioner may, by instrument in writing, appoint any
correctional officer to be an escort for the purposes of this Subdivision.
(6) In this section, high security classification means a classification
prescribed by the regulations as a high security classification.
30 Effect of interstate leave permit
(1) If it is a condition of an interstate leave permit that an inmate be
escorted to a participating State, the permit:
(a) authorises the inmate concerned to be absent from the
correctional centre in the custody of an escort for the purpose
and period specified in the permit, and
(b) authorises the escort to take and keep custody of the inmate for
the purpose of escorting the inmate:
(i) to the participating State (whether or not across any
other State), and
(ii) within the participating State,
in accordance with the permit, and
(c) authorises the escort to take and keep custody of the inmate for
the purpose of returning the inmate to the correctional centre
from which leave of absence was given.
(2) If it is not a condition of an interstate leave permit that an inmate be
escorted to a participating State, the permit authorises the inmate
concerned to be absent from the correctional centre for the purpose and
period specified in the permit.
31 Variation or revocation of interstate leave permit
The Commissioner may at any time:
(a) vary or omit any condition of an interstate leave permit
(whether specified in the permit or prescribed by the
regulations), or
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(b) substitute or add new conditions to an interstate leave permit,
or
(c) revoke an interstate leave permit.
32 Breach of interstate leave permit
An inmate must not fail, without reasonable excuse, to comply with
any condition of an interstate leave permit.
Maximum penalty: 10 penalty units.
33 Notice to participating State and transit jurisdiction
On granting an interstate leave permit, the Commissioner must cause
written notice of the fact that the permit has been granted, and of the
period of the permit, to be given:
(a) to the corresponding Commissioner and the chief officer of
police of the participating State to which the inmate is to travel,
and
(b) to the chief officer of police of any other jurisdiction through
which the inmate is to travel to reach the participating State.
34 Effect of interstate leave permit issued under corresponding interstate
law
A correctional officer (however described) or a police officer of a
participating State who is authorised under a permit issued under a
corresponding interstate law to escort a person imprisoned in that State
to or through New South Wales is authorised, while in New South
Wales:
(a) to take and keep custody of the person for the purposes and
period set out in the permit, and
(b) to take and keep custody of the person for the purpose of
returning the person to the participating State.
35 Arrest of escaped interstate prisoners
If it appears to an interstate escort, a police officer or any other person
that an interstate prisoner has escaped from lawful custody, the
interstate escort, police officer or person may arrest the interstate
prisoner and (in the case of an interstate prisoner in escorted custody)
return the interstate prisoner to the custody of the interstate escort.
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Clause 36 Crimes (Administration of Sentences) Bill 1999
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Division 3 Transfer and leave of absence
36 Return of escaped interstate prisoners to State of origin
(1) An interstate prisoner:
(a) who is arrested following an escape, or
(b) who attempts to escape,
may be taken before a Magistrate.
(2) Despite the terms of any permit issued in accordance with a
corresponding interstate law, a Magistrate may by warrant (a return
warrant):
(a) order the return of the interstate prisoner to the participating
State in which the permit was issued, and
(b) order the interstate prisoner to be delivered to an interstate
escort for the purpose of such a return.
(3) A return warrant may be executed in accordance with its terms.
(4) An interstate prisoner who is the subject of a return warrant may be
held in custody as an inmate until the person is delivered into the
custody of an interstate escort in accordance with that warrant, or until
the expiry of a period of 14 days from the issue of the warrant,
whichever first occurs.
(5) A return warrant ceases to have effect if the interstate prisoner who is
the subject of the warrant is not delivered into the custody of an
interstate escort, in accordance with the terms of the warrant, within 14
days after the warrant is issued.
37 Liability of Crown for damage caused by inmate or escort
(1) The Crown in right of the State is liable for any damage or loss
sustained by any person in a participating State that is caused by the
acts or omissions of an inmate or escort while in a participating State
because of an interstate leave permit.
(2) Nothing in this section affects any right of action the Crown may have
against the inmate or escort for the damage or loss concerned.
Subdivision 3 Miscellaneous
38 Absent inmates taken to be in custody
(1) This section applies to an inmate who is absent from a correctional
centre in any of the following circumstances:
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(a) while performing community service work outside a
correctional centre, as referred to in section 6 (2),
(b) while being transferred from one correctional centre to another,
as referred to in section 23,
(c) while at a hospital or other place referred to in section 24, or
while being transferred between a correctional centre and such
a hospital or place,
(d) while absent from a correctional centre in accordance with a
local leave order,
(e) while absent from a correctional centre in accordance with a
local leave permit,
(f) while absent from a correctional centre in accordance with an
interstate leave permit,
(g) while being transferred from one part of a correctional centre to
another part of the correctional centre located on separate
premises.
(2) An inmate who is absent from a correctional centre in any of the
circumstances referred to in subsection (1) is taken to be in the custody
as follows:
(a) if unescorted, the inmate is taken to be in the custody of the
governor of the correctional centre from which he or she is
absent,
(b) if escorted by a correctional officer employed in a correctional
centre, the inmate is taken to be in the custody of the governor
of the correctional centre in which the correctional officer is
employed,
(c) if escorted by a correctional officer not employed in a
correctional centre, the inmate is taken to be in the custody of
the designated officer.
(3) An inmate is not taken to be absent from a correctional centre merely
because the inmate is in some other part of a correctional complex of
which the correctional centre forms part.
(4) In this section:
correctional officer means:
(a) a correctional officer engaged in court security or escort duties,
or
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Division 3 Transfer and leave of absence
(b) a person employed on a temporary basis within the Department
to perform court security or escort duties, or
(c) a person holding an authority under section 240 to perform
escort duties.
designated officer means a person designated by the Commissioner for
the purposes of this section, whether generally or in relation to a
particular case.
39 Powers of arrest
(1) If it appears to the Commissioner that:
(a) an inmate has contravened, or has manifested an intention to
contravene, a condition of a local leave permit or interstate
leave permit, or
(b) an inmate's local leave permit or interstate leave permit has
been revoked, or
(c) an inmate has not returned to a correctional centre at the expiry
of the period specified in a local leave permit or interstate leave
permit,
the Commissioner may issue a warrant for the inmate's arrest and
return to a correctional centre.
(2) Any police officer may, with or without warrant, arrest an inmate who
escapes from custody.
(3) A warrant under this section is sufficient authority for a police officer
to arrest the inmate named in the warrant, to convey the inmate to the
correctional centre specified in the warrant and to deliver the inmate
into the custody of the governor of that correctional centre.
40 Certain unlawful absences not to affect length of sentence
(1) This section applies to an inmate who is unlawfully absent from a
correctional centre during the term of a sentence:
(a) otherwise than by reason of having escaped from lawful
custody, and
(b) otherwise than by reason of having failed to return to a
correctional centre at the expiry of the period specified in a
local leave permit or interstate leave permit, and
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Transfer and leave of absence Division 3
(c) otherwise than by reason of having failed to return to a
correctional centre following the revocation of a periodic
detention order, home detention order or parole order,
and so applies whether or not the inmate is taken, while absent, to be
in the custody of the governor of the correctional centre.
(2) For the purpose only of calculating how much of the sentence the
inmate has served, the inmate is taken to have been in lawful custody
for the whole of that absence.
41 Transfer of inmates to or through ACT
An inmate who is in the Australian Capital Territory:
(a) while being transferred from one correctional centre to another
under this Act, or
(b) while being transferred to a hospital or other place for medical
attention, or
(c) while absent from a correctional centre in accordance with a
local leave order or local leave permit,
remains in the lawful custody of the governor of the correctional centre
from which the inmate is transferred or absent.
Division 4 Prisoners received from Australian Capital
Territory
42 Definitions
(1) In this Division:
Australian Capital Territory Act means the Removal of Prisoners Act
1968 of the Australian Capital Territory.
Australian Capital Territory warrant means a warrant issued under
the Australian Capital Territory Act.
authorised person, constable, court, magistrate and order have the
same meanings as they have in the Australian Capital Territory Act.
prisoner means a person who is liable to undergo imprisonment or
other detention in custody under a law in force in the Australian
Capital Territory.
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Division 4 Prisoners received from Australian Capital Territory
(2) For the purposes of this Division, a reference to an order of a court or
magistrate includes a reference to a warrant issued by a court or
magistrate, other than an Australian Capital Territory warrant.
43 Application of Division
This Division does not apply to a person who is the subject of a
direction by the Attorney-General of the Australian Capital Territory
under section 6A of the Australian Capital Territory Act.
44 Conveyance and detention of prisoners from ACT
(1) If a constable has a prisoner in custody in accordance with the terms
of an Australian Capital Territory warrant, it is lawful for the constable
to hold and deal with the prisoner in accordance with those terms.
(2) It is the duty of the governor of a correctional centre or any other
officer doing duty at a correctional centre to accept custody of any
prisoner the subject of an Australian Capital Territory warrant.
(3) The prisoner is to be held in custody in a correctional centre for so
long as is necessary for the order of the court or magistrate referred to
in the Australian Capital Territory warrant to be executed in
accordance with that warrant.
(4) Nothing in this section prevents the early release of a prisoner by
reason of the operation of any law of the Commonwealth, or of the
Australian Capital Territory, relating to the release of prisoners.
(5) Until released from custody or delivered into the custody of a
constable under an Australian Capital Territory warrant, a prisoner may
be dealt with as if the prisoner's sentence were a sentence passed under
a law of New South Wales.
(6) Subsection (5) is subject to the provisions of the Australian Capital
Territory Act.
45 Return of prisoners to ACT
(1) If a constable presents to a governor of a correctional centre an
Australian Capital Territory warrant in respect of a prisoner held in
custody in the correctional centre under this Division:
(a) for the delivery of the prisoner into the custody of the
constable, and
(b) for the conveyance of the prisoner to the Australian Capital
Territory,
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Prisoners received from Australian Capital Territory Division 4
the governor of the correctional centre must deliver the prisoner into
the custody of the constable.
(2) The warrant is sufficient authority for the constable to convey the
prisoner in custody to the Australian Capital Territory.
46 Evidentiary provision
A document purporting to be an Australian Capital Territory warrant
and to be under the hand of an authorised person is admissible in any
proceedings and is in all courts exercising jurisdiction in New South
Wales and on all occasions evidence of the particulars stated in the
document.
Division 5 Prisoners received from Norfolk Island
47 Definitions
(1) In this Division:
Commonwealth Act means the Removal of Prisoners (Territories) Act
1923 of the Commonwealth.
Commonwealth warrant means a warrant issued under the
Commonwealth Act.
constable and prisoner have the same meanings as they have in the
Commonwealth Act.
(2) For the purposes of this Division, a reference to an order of a court or
Magistrate includes a reference to a warrant issued by a court or
Magistrate, other than a Commonwealth warrant.
48 Conveyance and detention of prisoners from Norfolk Island
(1) If a constable has a prisoner in custody in accordance with the terms
of a Commonwealth warrant, it is lawful for the constable to hold and
deal with the prisoner in accordance with those terms.
(2) It is the duty of the governor of a correctional centre or any other
officer doing duty at a correctional centre to accept custody of any
prisoner the subject of a Commonwealth warrant.
(3) The prisoner is to be held in custody in a correctional centre for so
long as is necessary for the order of the court or Magistrate referred to
in the Commonwealth warrant to be executed in accordance with that
warrant.
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Division 5 Prisoners received from Norfolk Island
(4) Nothing in this section prevents the early release of a prisoner by
reason of the operation of any law of the Commonwealth, or of any
law in force in Norfolk Island, relating to the release of prisoners.
(5) Until released from custody or delivered into the custody of a
constable under a Commonwealth warrant, a prisoner may be dealt
with as if the prisoner's sentence were a sentence passed under a law
of New South Wales.
(6) Subsection (5) is subject to the provisions of the Commonwealth Act.
49 Return of prisoners to Norfolk Island
(1) If a constable presents to a governor of a correctional centre a
Commonwealth warrant in respect of a prisoner held in custody in the
correctional centre under this Division:
(a) for the delivery of the prisoner into the custody of the
constable, and
(b) for the conveyance of the prisoner to Norfolk Island,
the governor of the correctional centre must deliver the prisoner into
the custody of the constable.
(2) The warrant is sufficient authority for the constable to convey the
prisoner in custody to Norfolk Island.
50 Evidentiary provision
A document purporting to be a Commonwealth warrant and to be
under the hand of the Administrator of Norfolk Island, a judge of the
Federal Court, a Magistrate of a court established under a law in force
in Norfolk Island or the clerk of such a court is admissible in any
proceedings and is in all courts evidence of the particulars stated in the
document.
Division 6 Correctional centre discipline
51 Definitions
In this Division:
correctional centre offence means any act or omission by an inmate:
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(a) that occurs while the inmate is within a correctional centre or
correctional complex or is taken to be in the custody of the
governor of a correctional centre, and
(b) that is declared by the regulations to be a correctional centre
offence for the purposes of this Division.
major offence means any correctional centre offence that is declared
by the regulations to be a major offence for the purposes of this
Division.
minor offence means any correctional centre offence that is not
declared by the regulations to be a major offence for the purposes of
this Division.
withdrawable privilege means a privilege or amenity that is declared
by the regulations to be a withdrawable privilege for the purposes of
this Division.
52 Hearing of charges by governor
(1) If it is alleged that an inmate of a correctional centre has committed a
correctional centre offence, the governor of the correctional centre may
charge the inmate with the offence and conduct an inquiry into the
allegation.
(2) The following provisions apply to any such inquiry:
(a) the inquiry must be conducted with as little formality and
technicality, and with as much expedition, as fairness to the
inmate charged, the requirements of this Act and the regulations
and the proper consideration of the charge permit,
(b) the governor is not bound by the rules of evidence, but may
inform himself or herself of any matter in such manner as the
governor thinks fit,
(c) the inmate is entitled to be heard at any hearing during the
inquiry and to examine and cross-examine witnesses,
(d) except as provided by paragraph (e), the inmate is not entitled
to be represented by a legal practitioner or by any other person,
(e) the governor must allow a person (other than a legal
practitioner) to represent or assist the inmate if the governor is
satisfied:
(i) that the inmate does not sufficiently understand the
nature of the inquiry, or
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(ii) that the inmate does not understand English or is
otherwise unable to properly represent himself or herself
during the inquiry,
(f) if the inmate refuses or fails to attend at any hearing during the
inquiry, the governor may hear and determine the matter in the
inmate's absence,
(g) evidence is not to be given on oath or by affidavit at any
hearing during the inquiry,
(h) the governor may allow any correctional officer or other person
to be present, and to be heard, at any hearing during the inquiry,
(i) the governor may transfer the conduct of an inquiry to the
governor of another correctional centre to which the inmate has
been transferred.
(3) The regulations may make further provision for or with respect to the
making of any such charge and the conduct of any such inquiry.
53 Penalties governor may impose
(1) If, after conducting an inquiry, the governor is satisfied beyond
reasonable doubt that the inmate is guilty of a minor offence, the
governor may impose one (but not more than one) of the following
penalties:
(a) reprimand and caution,
(b) deprivation, for up to 28 days, of such withdrawable privileges
as the governor may determine,
(c) confinement to a cell for up to 3 days, with or without
deprivation of withdrawable privileges,
(d) cancellation of any right to receive payments under section 7
for up to 14 days, but to the extent only to which those
payments are additional to the payments made at the base rate
to inmates generally or to inmates of a class to which the
inmate belongs.
(2) If, after conducting an inquiry, the governor is satisfied beyond
reasonable doubt that the inmate is guilty of a minor offence, but is of
the opinion that a penalty should not be imposed:
(a) the governor may dismiss the charge, or
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(b) the governor may defer imposing a penalty on condition that
the inmate be of good behaviour for a specified period (not
exceeding 2 months) and, if the condition is complied with,
dismiss the charge after the end of that period.
(3) If, after conducting an inquiry, the governor is not satisfied beyond
reasonable doubt that the inmate is guilty of a minor offence, the
governor must dismiss the charge.
(4) A penalty imposed on an inmate by the governor may be revoked by
the governor or by the Commissioner.
54 Reference of offences to Visiting Justice
(1) If the governor considers that the offence with which an inmate is
charged:
(a) is a major offence, or
(b) is a minor offence, but is of such a serious nature that it should
be referred to a Visiting Justice,
the governor may refer the charge to a Visiting Justice for hearing and
determination.
(2) A charge may be referred to a Visiting Justice without any inquiry
being conducted by the governor, or may be so referred during or after
any such inquiry.
55 Hearing of charges by Visiting Justice
(1) This section applies to proceedings on a charge that is referred to a
Visiting Justice under this Division.
(2) Subject to this section:
(a) the Justices Act 1902 applies to and in respect of the
proceedings in the same way as it applies to and in respect of
proceedings on an information laid before a Justice under
Division 2 of Part 4 of that Act, and
(b) any order or decision that is made by the Visiting Justice in or
in connection with any such proceedings is taken to have been
made under that Act.
(3) In its application to the proceedings, Division 2 of Part 4 of the
Justices Act 1902 is subject to such modifications as are prescribed by
the regulations and to such other modifications as the Visiting Justice
considers appropriate.
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(4) An inmate is entitled to be represented by a legal practitioner in the
proceedings.
(5) Any hearing in the proceedings is to be held in the correctional centre
for which the Visiting Justice is appointed.
(6) If the inmate is transferred to another correctional centre, the Visiting
Justice may transfer the proceedings to the Visiting Justice for the
other correctional centre.
56 Penalties Visiting Justice may impose
(1) If, after conducting an inquiry, the Visiting Justice is satisfied beyond
reasonable doubt that the inmate is guilty of the offence, the Visiting
Justice may make an order imposing one (but not more than one) of
the following penalties:
(a) reprimand and caution,
(b) deprivation, for up to 56 days, of such withdrawable privileges
as the Visiting Justice may determine,
(c) confinement to a cell for up to 28 days, with or without
deprivation of withdrawable privileges,
(d) cancellation of any right to receive payments under section 7
for up to 14 days, but to the extent only to which those
payments are additional to the payments made at the base rate
to inmates generally or to inmates of a class to which the
inmate belongs,
(e) extension, by up to 28 days at a time, of:
(i) the term of the inmate's sentence, and
(ii) in the case of an offence occurring during a non-parole
period of the inmate's sentence, the non-parole period
of the sentence.
(2) If, after hearing the charge, the Visiting Justice is satisfied beyond
reasonable doubt that the inmate is guilty of the offence, but is of the
opinion that a penalty should not be imposed, the Visiting Justice may
dismiss the charge.
(3) If, after hearing the charge, the Visiting Justice is not satisfied beyond
reasonable doubt that the inmate is guilty of the offence, the Visiting
Justice must dismiss the charge.
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57 Drug tests for inmates
(1) This section applies to a correctional centre offence arising out of:
(a) the result of a urine test showing the presence of a drug in an
inmate's urine, or
(b) an inmate refusing or failing to provide a sample of his or her
urine when required to do so by a correctional officer of or
above the rank of Assistant Superintendent.
(2) The governor or Visiting Justice dealing with a charge relating to an
offence to which this section applies may order that an inmate be
deprived, for up to 6 months, of such withdrawable privileges as the
governor or Visiting Justice may determine if satisfied beyond
reasonable doubt that the inmate is guilty of the offence.
(3) The governor or Visiting Justice is not to make such an order if the
inmate establishes that the drug:
(a) was administered on and in accordance with the prescription of
a registered medical practitioner or registered dentist, or
(b) was lawfully supplied by, and taken in accordance with the
instructions of, a registered medical practitioner, registered
dentist or registered nurse, or
(c) was taken or administered in such form or preparation as may
be allowed by the regulations, or
(d) was present in a quantity that does not exceed the quantity (if
any) prescribed by the regulations, or
(e) was not a drug within the meaning of this Act at the time it was
taken by or administered to the inmate.
58 Certain offences may be dealt with by Local Court
If, during proceedings on a charge relating to a correctional centre
offence, the Visiting Justice is of the opinion that the act or omission
giving rise to the offence constitutes an offence for which criminal
proceedings can and should be taken before a court, the Visiting
Justice must terminate the proceedings and order that the inmate be
brought before a Local Court to be dealt with according to law.
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59 Compensation for property damage
(1) If an inmate causes any loss of or damage to property as a result of
committing a correctional centre offence, the governor or Visiting
Justice may, whether or not a penalty is imposed for the offence, order
that the inmate pay to the Crown (or, if the property is owned by some
other person, to that other person) a specified amount as compensation
for the loss or damage.
(2) The maximum amount of compensation that the governor may order
an inmate to pay is $50.
(3) Compensation that an inmate is ordered to pay under this section is
payable out of any money held by the governor on behalf of the inmate
or out of any other money otherwise payable to the inmate under this
Act or the regulations.
60 Cumulative punishments
If:
(a) an inmate is charged with 2 or more correctional centre
offences, and
(b) the charges are determined together or arise out of a single
incident,
any cumulative penalties imposed for those offences must not, in
respect of any particular kind of penalty, exceed the maximum penalty
that may be imposed in relation to a single correctional centre offence.
61 Record of punishments for correctional centre offences
(1) If a penalty is imposed on an inmate in relation to a correctional centre
offence, the governor must cause the following particulars to be
recorded:
(a) the nature and date of the offence,
(b) the name of the inmate,
(c) the date of sentence,
(d) the penalty imposed,
(e) any order for the payment of compensation.
(2) The record must be kept at the correctional centre concerned and made
available for inspection by such persons as the Commissioner
considers appropriate.
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(3) The regulations may make provision for or with respect to the disposal
of any such record.
62 Appeals against decisions of Visiting Justices
(1) An appeal lies to the District Court under Part 5A of the Justices Act
1902 against the decision of a Visiting Justice to impose a penalty
under section 56 (1) (e) as if the decision were a decision of a Local
Court constituted by a Magistrate.
(2) The provisions of the Justices Act 1902 relating to the determination
of appeals against decisions of a Local Court apply to the
determination of an appeal referred to in subsection (1), subject to such
modifications as are prescribed by the regulations or as the District
Court considers appropriate.
(3) The regulations may make provision for or with respect to the lodging
and determination of appeals under this section.
(4) Except as otherwise provided by this section, a decision of a Visiting
Justice to impose a penalty on an inmate in proceedings under this
Division is final and is not liable to be challenged, appealed against,
quashed or called into question by any court.
63 Double jeopardy
(1) For the purpose of determining whether proceedings for a criminal
offence may be brought for the act or omission giving rise to a
correctional centre offence, the decision of a Visiting Justice in
proceedings for the correctional centre offence is taken to be the
decision of a court in proceedings for a criminal offence.
(2) Proceedings for a correctional centre offence are not to be commenced
or continued under this Division if proceedings for a criminal offence
have been commenced in a court for the act or omission giving rise to
the correctional centre offence.
64 False or misleading statements
(1) A person must not, in or in connection with any proceedings under this
Division, make any statement that the person knows to be false or
misleading in a material particular.
Maximum penalty: 5 penalty units.
(2) This section does not apply to a statement verified by statutory
declaration.
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65 Offences may be dealt with by governor of any correctional centre
A correctional centre offence may be dealt with under this Division by
the governor of a correctional centre, or by the Visiting Justice for a
correctional centre, even though the offence was committed, or is
alleged to have been committed, while the inmate was in another
correctional centre or correctional complex or in the custody of the
governor of another correctional centre.
Division 7 Classification of serious offenders
66 Application of Division
This Division applies to any proposal for a recommendation by the
Review Council under section 197 that a serious offender be given a
security classification that would allow the offender to become eligible
for unescorted leave of absence under a local leave permit or interstate
leave permit (a low security classification).
67 Formulation of Review Council's initial intention
(1) As soon as practicable after a proposal is made that the Review
Council recommend a low security classification for a serious
offender, the Review Council is (subject to and in accordance with the
regulations) required to give a preliminary notice of its intention to any
victim of the offender whose name is recorded in the Victims Register.
(2) The preliminary notice:
(a) must state that a proposal for such a recommendation has been
made, and
(b) must state that there will be an opportunity for victims to make
submissions to the Review Council about the making of such
a recommendation, and
(c) must specify a period of at least 14 days during which a victim
may lodge with the Executive Officer and Registrar of the
Review Council a notice of intention to make submissions to
the Review Council.
68 Submissions by victims
A victim who receives a notice under section 67 may make a written
submission to the Review Council about the proposed
recommendation referred to in the notice.
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69 Review Council to consider all submissions
The Review Council must consider all submissions made in
accordance with this Division and must disregard all other
submissions.
70 Decision following review
(1) After reviewing all the reports, documents, submissions and other
information placed before it in relation to a serious offender, the
Review Council must decide whether or not to recommend a low
security classification for the offender.
(2) If the Review Council decides not to recommend a low security
classification, the Review Council must cause the reasons for its
decision to be recorded in its minutes.
71 Submissions by State
(1) The State may at any time make submissions to the Review Council
concerning the making of a low security classification for a serious
offender.
(2) If the State does so, the Review Council is not to make a final decision
concerning the classification of the offender until it has taken any such
submission into account.
(3) The regulations may make provision for or with respect to submissions
by the State under this section, including provisions relating to the
application of this Division in connection with any such submission.
(4) The powers of the State under this section may be exercised, subject
to the regulations, by any agent of the State.
Division 8 Miscellaneous
72 Custody of inmates
(1) While held in custody in a correctional centre, an inmate is taken to be
in the custody of the governor of the correctional centre to which the
inmate has been committed or (if the inmate has been transferred to
another correctional centre in accordance with section 23) the
correctional centre to which the inmate has been transferred.
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(2) An inmate does not cease to be in the custody of the governor of a
correctional centre merely because the inmate is for the time being held
in custody in some other part of a correctional complex (other than
another correctional centre) of which the correctional centre forms part.
(3) Despite any other provision of this Act, an inmate is not to be held in
a police station or court cell complex for more than 7 days at a time.
73 Compulsory medical treatment
(1) A health practitioner may carry out health treatment on an inmate
without the inmate's consent if of the opinion that it is necessary to do
so in order to save the inmate's life or to prevent serious damage to the
inmate's health.
(2) Health treatment carried out on an inmate under this section is, for all
purposes, taken to have been carried out with the inmate's consent.
(3) Nothing in this section relieves a health practitioner from liability in
respect of the carrying out of health treatment on an inmate, being a
liability to which the health practitioner would have been subject had
the treatment been carried out with the inmate's consent.
(4) In this section:
health practitioner means a medical practitioner registered under the
Medical Practice Act 1992 or a dentist registered under the Dentists
Act 1989.
health treatment means:
(a) medical or surgical treatment, in relation to a medical
practitioner, or
(b) dental treatment, in relation to a dentist.
74 Notice to coroner of inmate's death
(1) The governor of a correctional centre must give written notice to a
coroner immediately after becoming aware of the death of any inmate
who is in the custody of the governor.
(2) For the purposes of the Coroners Act 1980, the receipt of such a notice
from the governor has the same effect as the receipt of information of
a death from a police officer.
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75 Confiscation of property
(1) The Commissioner may confiscate any property that is unlawfully in
the possession of an inmate.
(2) Property that is confiscated under this section becomes the property of
the State, to be disposed of as the Commissioner may direct.
(3) The regulations may provide for the circumstances in which property
is taken to be unlawfully in the possession of an inmate.
76 Sale of unclaimed property
(1) The Commissioner may direct that any unclaimed property found
within a correctional centre be sold.
(2) The proceeds of sale of unclaimed property are to be dealt with as if
they were unclaimed money held by the Commissioner.
77 Attendance of inmates before courts and court officers
(1) If an appropriate authority is satisfied that:
(a) it is necessary that an inmate should attend before it for the
purposes of any legal proceeding, inquest or inquiry, and
(b) the absence of the inmate may prejudice the rights of a party,
the authority may make an order directing the governor of the
correctional centre in which the inmate is held to cause the inmate to
be produced at the court or other place at which the proceeding,
inquest or inquiry is being, or is to be, held.
(2) Such an order is sufficient authority for the governor to cause the
inmate to be produced in accordance with the order.
(3) An inmate produced in accordance with such an order is taken to be
in lawful custody while in the actual custody of the governor, a
correctional officer or a police officer.
(4) It is the duty of the person having actual custody of the inmate to
return the inmate to the correctional centre from which the inmate was
produced as soon as the appropriate authority permits.
(5) In this section:
appropriate authority means:
(a) a court, or
(b) a coroner, or
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(c) the Independent Commission Against Corruption, or
(d) a Royal Commission, or
(e) the Victims Compensation Tribunal, or
(f) the senior administrative officer (such as the clerk or registrar)
of a court, or
(g) a person prescribed by the regulations for the purposes of this
definition.
correctional officer means:
(a) a correctional officer engaged in court security or escort duties,
or
(b) a person employed on a temporary basis within the Department
to perform court security or escort duties, or
(c) a person holding an authority under section 240 to perform
escort duties.
78 Use of dogs in maintaining good order and security
(1) With the approval of the governor of a correctional centre, a
correctional officer may use a dog to assist in maintaining the good
order and security of the correctional centre and any correctional
complex of which the correctional centre forms part.
(2) Without limiting subsection (1), such an approval may be given to the
use of a dog for any of the following purposes:
(a) the carrying out of searches within a correctional centre or
correctional complex for any reason,
(b) the tracking of an escaped inmate,
(c) the escorting of inmates while they are being moved from one
place to another,
(d) the disarming of inmates,
(e) the patrolling of correctional centres and correctional
complexes,
(f) the assisting of a police officer in the execution of the police
officer's functions.
(3) At the request of the Director-General of the Department of Juvenile
Justice, a correctional officer may use a dog to assist in the detection
of drugs in a detention centre within the meaning of the Children
(Detention Centres) Act 1987.
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(4) A correctional officer is not personally liable for injury or damage
caused by the use of a dog that is under the correctional officer's
control if that use was in accordance with the governor's approval.
(5) Subsection (4) does not apply if injury or damage occurs as a result of
anything commanded to be done by a correctional officer maliciously
and without reasonable and probable cause.
(6) This section applies to a person employed as a custodian of inmates by
the management company for a managed correctional centre in the
same way as it applies to a correctional officer.
79 Regulations
The regulations may make provision for or with respect to the
following matters:
(a) the management, control, administration, supervision and
inspection of correctional centres and correctional complexes,
(b) the procedure to be followed when admitting an inmate into a
correctional centre, including the procedure for accepting or
refusing custody of property in an inmate's possession when the
inmate is admitted,
(c) the classification of inmates into different categories and the
separation of inmates by reference to the categories into which
they have been classified,
(d) the procedure to be followed when releasing an inmate from a
correctional centre, including the procedure for returning
property accepted from an inmate when the inmate was
admitted into the correctional centre,
(e) the welfare of inmates, including the welfare of inmates
following their release from custody,
(f) the kind of work that a convicted inmate may be directed to
carry out and the circumstances in which such a direction may
be given,
(g) the expenditure of money (or money's worth) by inmates,
(h) the circumstances in which an inmate may lawfully acquire or
retain possession of property within a correctional centre and
the confiscation of property unlawfully in the possession of
inmates,
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(i) visits to inmates, including:
(i) the days and times that visits may be allowed, and
(ii) the maximum number of persons who may visit an
inmate at the same time, and
(iii) the classes of persons who may be prohibited from
visiting inmates, and
(iv) the conditions that must be observed by persons
intending to visit an inmate before such a visit will be
allowed, and
(v) the procedures to be observed by visitors and inmates
during visits,
(j) the making and receiving of telephone calls by inmates,
(k) the sending and receiving of letters and parcels by inmates,
including the circumstances in which letters and parcels may be
opened for inspection or confiscated,
(l) the procedures to be followed by an inmate when applying for
a local leave permit or interstate leave permit, and the
circumstances under which such a permit may be issued,
(m) the procedures to be followed by an inmate, and the facilities to
be provided to an inmate, for the purpose of enabling the
inmate to make a complaint to the governor of the correctional
centre or to any other person or body,
(n) the observance by inmates of religious rites and obligations,
(o) the acquisition by inmates of education and vocational training,
(p) the provision to inmates of medical, surgical and dental
treatment,
(q) the distribution of condoms to inmates,
(r) the circumstances in which a body search may be conducted on
an inmate, the procedures to be followed in conducting a body
search and the persons by whom, or in whose presence, a body
search is to be conducted,
(s) the circumstances in which a correctional officer may use force
against an inmate, and the keeping of records of the occasions
on which force is so used,
(t) the circumstances in which a correctional officer may use
firearms, and the keeping of records of the occasions on which
firearms are so used,
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Miscellaneous Division 8
(u) the equipment that may be used to restrain an inmate, and the
circumstances in which, and the maximum periods for which,
an inmate may be restrained by means of such equipment,
(v) the circumstances in which an inmate may be tested for drugs
or alcohol, the use of an inmate's breath, urine or faeces for the
purposes of a test for drugs or alcohol and the nature of the
tests to be used,
(w) the declaration of correctional centre offences and their division
into major and minor offences,
(x) the appointment of medical officers and chaplains for
correctional centres,
(y) the functions of correctional officers and other staff employed
within a correctional centre or correctional complex,
(z) the form of any warrants issued for the purposes of this Part.
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Clause 80 Crimes (Administration of Sentences) Bill 1999
Part 3 Imprisonment by way of periodic detention
Division 1 Preliminary
Part 3 Imprisonment by way of periodic detention
Division 1 Preliminary
80 Definitions
In this Part:
attendance order means an order directing an offender to participate
in any activity, as referred to in section 84 (1) (a).
offender means a person in respect of whom a periodic detention order
is in force.
work order means an order directing an offender to carry out
community service work, as referred to in section 84 (1) (b).
81 Obligations of offender
The obligations of an offender while serving a sentence by way of
periodic detention are:
(a) to comply with such requirements of this Part and the
regulations as apply to the offender, and
(b) to comply with the requirements of any directions given to the
offender under this Part, and
(c) to inform the governor responsible for the periodic detention
centre to which the offender is for the time being required to
report of any change in the offender's residential address.
82 Duration of periodic detention order
(1) Unless sooner revoked, an offender's periodic detention order expires:
(a) at the end of the term of the sentence to which it relates, or
(b) when the offender is released on parole,
whichever occurs first.
(2) Any detention period or part of a detention period during which an
offender is in custody (whether in relation to the offence concerned or
otherwise and whether as an inmate of a correctional centre or
otherwise) is taken to have been served by the offender in accordance
with this Part.
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Crimes (Administration of Sentences) Bill 1999 Clause 83
Imprisonment by way of periodic detention Part 3
Administration of periodic detention orders Division 2
Division 2 Administration of periodic detention orders
83 Duty to report to periodic detention centre
(1) An offender must report to a periodic detention centre at the beginning
of each detention period:
(a) in accordance with the requirements of the offender's periodic
detention order, as varied from time to time under section 85,
or
(b) if otherwise directed by the Commissioner, in accordance with
the Commissioner's directions.
(2) If the regulations prescribe standards of cleanliness and sobriety to be
complied with by an offender when reporting to a periodic detention
centre, the offender complies with this section only if he or she
complies with those standards.
84 Participation in activity or work
(1) The Commissioner may make an order directing an offender:
(a) to participate in any activity that the Commissioner considers
conducive to the offender's welfare or training, or
(b) to carry out community service work suitable to the offender's
capacity,
during any one or more detention periods.
(2) Such an order may direct the offender to report to a periodic detention
centre or to some other place approved by the Commissioner.
(3) If:
(a) an attendance order or work order directs an offender to report
to some place other than a periodic detention centre for the
purpose of participating in an activity or carrying out
community service work, and
(b) either:
(i) the activity or community service work is not available
there, or
(ii) it is impracticable for the offender to participate in the
activity or carry out the community service work there,
Page 45
Clause 84 Crimes (Administration of Sentences) Bill 1999
Part 3 Imprisonment by way of periodic detention
Division 2 Administration of periodic detention orders
the offender must report to such other place as the offender is directed
to by the person identified in the order in that regard, and must do so
in accordance with the directions of that person.
(4) The Commissioner may make an order exempting an offender from
serving the whole or any part of a detention period in a periodic
detention centre if the offender is the subject of an attendance order or
work order in force in respect of the whole or any part of that period.
(5) An offender who is absent from a detention centre during any
detention period by virtue of an attendance order or work order is
taken to have served the detention period in accordance with this Part.
85 Variation of day, time and place for periodic detention
(1) On the application of the offender or otherwise, the Commissioner may
make an order varying any one or more of the following:
(a) the times at which an offender's detention period begins and
ends,
(b) the days comprising an offender's detention period,
(c) the periodic detention centre to which an offender must report,
either in relation to one or more specified detention periods or in
relation to all remaining detention periods to be served by the offender.
(2) An order referred to in subsection (1) (a) must not be made so as to
vary the number of hours for which an offender must attend a periodic
detention centre during any detention period.
(3) An order referred to in subsection (1) (b) must not be made so as to
vary the number of detention periods to be served by an offender in
relation to any particular sentence.
(4) Immediately after making an order under this section in relation to an
offender, the Commissioner must cause written notice of the terms of
the order to be given to the offender.
86 Transfer of unruly offenders
(1) If an offender behaves in such a manner as to disturb the peace and
good order of a periodic detention centre, the governor responsible for
the periodic detention centre may order that the offender be transferred
to a correctional centre for the remainder of the detention period.
(2) An order under this section has effect according to its terms.
Page 46
Crimes (Administration of Sentences) Bill 1999 Clause 86
Imprisonment by way of periodic detention Part 3
Administration of periodic detention orders Division 2
(3) This section is subject to such provisions of the regulations as are
made for the purposes of this section.
87 Leave of absence for failing to report
(1) The Commissioner may grant an offender leave of absence for one or
more detention periods:
(a) for health reasons, or
(b) on compassionate grounds, or
(c) on the ground that the offender is in custody, or
(d) for any other reason the Commissioner thinks fit.
(2) Leave of absence under this section may be granted either before or
after the detention period to which it relates.
(3) An application for leave of absence in respect of a detention period
may be made at any time before the beginning of that period, but must
be made before the expiry of 7 days after the beginning of that period,
unless, in the particular circumstances of the case, the Commissioner
allows further time for the application.
88 Leave of absence for reporting late
(1) The Commissioner may grant an offender leave of absence for part or
all of a detention period for which the offender has reported late if the
Commissioner is satisfied that the offender has a reasonable excuse for
having reported late.
(2) An application for leave of absence made by an offender who reports
late for a detention period must be made before the expiry of 7 days
after the beginning of that period unless, in the particular
circumstances of the case, the Commissioner allows further time for
the application.
(3) If leave of absence is granted for part of a detention period, the
Commissioner may direct the offender to serve an equivalent period of
time to that for which leave is granted:
(a) immediately before the beginning, or at the end, of a detention
period specified by the Commissioner, or
(b) as part of an additional detention period to be served by the
offender.
Page 47
Clause 89 Crimes (Administration of Sentences) Bill 1999
Part 3 Imprisonment by way of periodic detention
Division 2 Administration of periodic detention orders
89 Failure to report or reporting late extends term of sentence
(1) The sentence to be served by an offender who fails to report for one or
more detention periods (whether or not leave of absence is granted) is,
by this subsection, extended by one week for each detention period for
which the offender fails to report.
(2) The sentence to be served by an offender who reports late for one or
more detention periods (otherwise than where leave of absence is
granted) is, by this subsection, extended by one week for each
detention period for which the offender reports late.
(3) The sentence to be served by an offender:
(a) who reports late for one or more detention periods, and
(b) who is granted leave of absence subject to a requirement that an
equivalent period of time to that for which leave is granted is to
be served as part of an additional detention period,
is, by this subsection, extended by one week for each additional
detention period necessary to accommodate the total period of time
directed to be served by all such directions given in relation to that
sentence.
(4) The sentence to be served by an offender who fails to report, or who
reports late, for one or more detention periods (otherwise than where
leave of absence is granted) is, by this subsection, further extended by
one week for each detention period for which the offender fails to
report or reports late.
(5) An offender's sentence may not be extended by subsection (4) by more
than 6 weeks.
(6) Any extension by subsection (4) of an offender's sentence is in
addition to any extension by subsection (1), (2) or (3) of that sentence
with respect to the same failure to report or lateness in reporting.
(7) In this section, a reference to the extension of an offender's sentence
is a reference to:
(a) the extension of the term of the sentence, and
(b) if the relevant failure to report or reporting late occurs during a
non-parole period of the sentence, the extension of the non-
parole period of the sentence.
Page 48
Crimes (Administration of Sentences) Bill 1999 Clause 90
Imprisonment by way of periodic detention Part 3
Administration of periodic detention orders Division 2
90 Commissioner may grant exemptions from extension of sentence
(1) The Commissioner may make an order exempting an offender from
the operation of section 89 (1), (2), (3) or (4) with respect to any one
or more of the detention periods for which the offender has failed to
report or has reported late.
(2) The Commissioner must not refuse an application for an exemption
made by the offender unless:
(a) the offender has been given written notice of the
Commissioner's proposal to refuse the application, and
(b) the offender has been given a reasonable opportunity to make
submissions, either orally or in writing, as to why the
exemption should be granted, and
(c) the Commissioner has taken any such submissions into
consideration.
91 Leave of absence at direction of Commissioner
(1) The Commissioner may direct an offender to take leave of absence for
one or more detention periods if of the opinion that:
(a) the presence of the offender in a periodic detention centre, or
(b) the participation of the offender in any activity under an
attendance order, or
(c) the carrying out by the offender of any community service work
under a work order,
would constitute a threat to the personal safety or health of the offender
or any other person.
(2) In particular, a direction may be given under this section if the offender
or some other offender is suffering from a contagious or infectious
disease.
92 Commissioner may grant exemptions for health reasons or on
compassionate grounds
(1) For health reasons or on compassionate grounds, the Commissioner
may order that one or more detention periods yet to be served by an
offender be regarded as having been served if satisfied that the
offender is unlikely to be able to serve them within a reasonable time.
Page 49
Clause 92 Crimes (Administration of Sentences) Bill 1999
Part 3 Imprisonment by way of periodic detention
Division 2 Administration of periodic detention orders
(2) In determining what is a reasonable time, the Commissioner must have
regard to the number of detention periods yet to be served and the
likely duration of the offender's inability to serve them.
(3) Any detention period to which an order under this section relates is
taken to have been served by the offender in accordance with this Part.
93 Appeal to Local Court from Commissioner's refusal to grant leave of
absence
(1) On the application of an offender in respect of whom:
(a) leave of absence for one or more detention periods has been
refused under section 87, or
(b) leave of absence for part or all of a detention period has been
refused under section 88,
a Local Court may direct that leave of absence be granted in respect of
all or any of those detention periods, or part or all of the detention
period, as the case requires.
(2) The application may not be made later than 21 days after the date on
which the original application for leave of absence was refused.
(3) Subject to any order of the Local Court to the contrary, the making of
an application under this section does not stay the operation of section
89 (1), (2), (3) or (4) with respect to any detention period to which the
application relates.
(4) An application under this section is only to be considered by the Local
Court if it is satisfied that the application is not an abuse of process.
(5) Leave of absence is taken to have been granted for each detention
period (or part of a detention period) for which the Local Court makes
a direction under this section.
94 Directions
(1) An authorised officer may give directions to an offender (being
directions not inconsistent with this Act or the regulations) for the
purpose of enforcing the offender's obligations with respect to periodic
detention.
(2) In this section, authorised officer means the Commissioner, the
governor responsible for the periodic detention centre attended by the
offender or any correctional officer employed within that periodic
detention centre.
Page 50
Crimes (Administration of Sentences) Bill 1999 Clause 95
Imprisonment by way of periodic detention Part 3
Offences Division 3
Division 3 Offences
95 Offences
(1) An offender who:
(a) fails to comply with an attendance order or work order, or
(b) fails to report to a periodic detention centre in accordance with
an order under section 85 (1) (c) varying the periodic detention
centre to which the offender must report, or
(c) disobeys a direction under section 84 (3) or 94 (1), or
(d) escapes or attempts to escape from lawful custody,
is guilty of an offence.
Maximum penalty: 10 penalty units or imprisonment for 12 months,
or both.
(2) An offender who commits an offence against discipline is liable to be
punished:
(a) by caution or reprimand, or
(b) by deprivation of specified amenities or privileges for up to 4
detention periods.
(3) If an offender is punished for an offence against discipline in
accordance with subsection (2), the offender is not liable to any further
proceedings for the offence.
(4) In this section, offence against discipline means any act or omission
by an offender:
(a) that occurs while the offender is within a periodic detention
centre or is taken to be in the custody of the governor
responsible for a periodic detention centre, and
(b) that is declared by the regulations to be an offence against
discipline for the purposes of this Division.
96 Defences to prosecution for certain offences
(1) If an offender is prosecuted for an offence of failing to comply with an
attendance order or work order, it is a sufficient defence if the offender
satisfies the court:
(a) that the offender had a reasonable excuse for failing to comply
with the order, and
Page 51
Clause 96 Crimes (Administration of Sentences) Bill 1999
Part 3 Imprisonment by way of periodic detention
Division 3 Offences
(b) that, before the offender was so required to comply or as soon
as practicable afterwards, the offender had made that excuse
known to the governor responsible for the periodic detention
centre to which the offender had previously been required to
report.
(2) If an offender is prosecuted for an offence involving an order under
section 85 (1) (a), (b) or (c), it is a sufficient defence if the offender
satisfies the court that written notice of the terms of the order was not
given to the offender in sufficient time to enable the offender to
comply with the order.
(3) If an offender is prosecuted for an offence of failing to report to a
periodic detention centre in accordance with an order under section
85 (1) (c), it is a sufficient defence if the offender satisfies the court:
(a) that the offender had a reasonable excuse for failing to report in
compliance with the order, and
(b) that, before the offender was so required to report or as soon as
practicable afterwards, the offender had made that excuse
known to the governor responsible for the periodic detention
centre to which the order required the offender to report.
(4) If an offender is prosecuted for an offence involving a direction under
this Part, it is a sufficient defence if the offender satisfies the court:
(a) that the direction was not communicated to the offender in
sufficient time to enable the offender to comply with the
direction, or
(b) that the offender:
(i) was complying with a provision of this Part or the
regulations, and
(ii) could not simultaneously comply with both the direction
and that provision, or
(c) that the offender:
(i) was complying with some other direction under this
Part, and
(ii) could not simultaneously comply with both directions.
(5) If an offender is prosecuted for an offence involving a provision of this
Part or the regulations, it is a sufficient defence if the offender satisfies
the court that the offender:
(a) was complying with a direction under this Part, and
Page 52
Crimes (Administration of Sentences) Bill 1999 Clause 96
Imprisonment by way of periodic detention Part 3
Offences Division 3
(b) could not simultaneously comply with the direction and with
that provision.
97 Penalty notices
(1) An authorised officer may serve a penalty notice on a person if it
appears to the officer that the person has committed an offence against
this Part or the regulations, being an offence prescribed by the
regulations for the purposes of this section.
(2) A penalty notice is a notice to the effect that, if the person served does
not wish to have the matter dealt with by a court, the person may pay,
within the time and to the person specified in the notice, the penalty
prescribed by the regulations for the offence if dealt with under this
section.
(3) If the penalty prescribed for an alleged offence is paid in accordance
with this section, no person is liable to any further proceedings for the
alleged offence.
(4) Payment in accordance with this section is not to be regarded as an
admission of liability for the purposes of, nor is in any way to affect or
prejudice, any civil claim, action or proceeding arising out of the same
occurrence.
(5) The regulations:
(a) may prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision creating
the offence, and
(b) may prescribe the penalty payable for the offence if dealt with
under this section, and
(c) may prescribe different penalties for different offences or
classes of offences.
(6) The penalty prescribed under this section in respect of an offence is
not to exceed 2 penalty units.
(7) This section does not limit the operation of this or any other Act in
relation to proceedings that may be taken in respect of offences.
(8) In this section, authorised officer means the Commissioner or any
person authorised by the Commissioner for the purposes of this
section.
Page 53
Clause 98 Crimes (Administration of Sentences) Bill 1999
Part 3 Imprisonment by way of periodic detention
Division 4 Miscellaneous
Division 4 Miscellaneous
98 Application of Part 2 to periodic detention
(1) This section applies to an offender:
(a) while held in custody in a periodic detention centre for the
purpose of serving the offender's sentence, or
(b) while held in custody in a correctional centre to which the
offender has been transferred to serve the remainder of a
detention period, or
(c) while attending at a place outside a periodic detention centre in
accordance with the requirements of an attendance order or
work order, or
(d) while travelling between a periodic detention centre and a place
outside a periodic detention centre, or between different places
outside a periodic detention centre, in accordance with the
requirements of an attendance order or work order.
(2) Subject to this Part:
(a) the regulations may apply any of the provisions of Part 2
(subject to any modifications prescribed by the regulations) to
and in respect of an offender to whom this section applies, and
(b) any provision of Part 2 that is so applied has effect as if it
formed part of this Part.
99 Custody of offenders
(1) While held in custody in a periodic detention centre, an offender is
taken to be in the custody of the governor responsible for the centre or
(if the offender is required to report to some other periodic detention
centre in accordance with section 85 (1) (c)) of the governor
responsible for the periodic detention centre to which the offender is
required to report.
(2) An offender who is outside a periodic detention centre by virtue of an
attendance order or work order is taken to be in the custody of the
governor responsible for the periodic detention centre in which the
offender would, but for the order, be held in custody.
Page 54
Crimes (Administration of Sentences) Bill 1999 Clause 100
Imprisonment by way of periodic detention Part 3
Miscellaneous Division 4
100 Community committees
(1) The Minister may, by notification published in the Gazette, establish
such committees (community committees) as the Minister thinks fit.
(2) A community committee is to operate in respect of a particular
geographical area specified in the notification establishing the
committee.
(3) A community committee is to consist of a person nominated by the
Commissioner, who is to be chairperson of the committee, and such
other persons as the Minister may appoint.
(4) The functions of a community committee are to make
recommendations to the Commissioner:
(a) as to the nature and extent of the community service work that
may be performed by offenders under work orders, and
(b) as to any other matter referred to it by the Commissioner.
101 Regulations
The regulations may make provision for or with respect to the
following matters:
(a) the management, control, administration, supervision and
inspection of periodic detention centres,
(b) the procedure to be followed when admitting an offender into
a periodic detention centre, including the procedure for
accepting or refusing custody of property in an offender's
possession when the offender is admitted,
(c) the procedures to be followed by an offender when applying for
leave of absence under section 87 or 88, and the circumstances
under which such leave of absence may be granted,
(d) the procedures to be followed by an offender when applying for
an exemption under section 90 or 92, and the circumstances
under which such an exemption may be granted,
(e) the procedures to be followed by an offender when making an
appeal under section 93,
(f) the circumstances in which an offender may be tested for drugs
or alcohol, the use of an offender's breath, urine or faeces for
the purposes of a test for drugs or alcohol and the nature of the
tests to be used,
Page 55
Clause 101 Crimes (Administration of Sentences) Bill 1999
Part 3 Imprisonment by way of periodic detention
Division 4 Miscellaneous
(g) the circumstances under which an offender may be required to
submit to a medical examination by a medical officer,
(h) the declaration of offences against discipline,
(i) the day-to-day routine of offenders, including the performance
of community service work within and outside a periodic
detention centre,
(j) the service of notices on an offender.
Page 56
Crimes (Administration of Sentences) Bill 1999 Clause 102
Imprisonment by way of home detention Part 4
Part 4 Imprisonment by way of home detention
102 Definition
In this Part:
offender means a person in respect of whom a home detention order
is in force.
103 Conditions governing home detention
(1) A home detention order is subject to the following conditions:
(a) the standard conditions imposed by the regulations,
(b) any additional conditions imposed by the sentencing court,
(c) any additional conditions imposed by the Parole Board under
this section.
(2) The Parole Board may from time to time, by notice given to the
offender:
(a) impose additional conditions on a home detention order, or
(b) vary or revoke any additional conditions imposed by it on a
home detention order.
(3) This section does not permit the Parole Board:
(a) to revoke any standard conditions imposed by the regulations
or any additional conditions imposed by the sentencing court,
or
(b) to impose any additional conditions, or vary any additional
conditions imposed by it, so as to be inconsistent with any
standard conditions imposed by the regulations or any
additional conditions imposed by the sentencing court.
104 Obligations of offender
The obligations of an offender while serving a sentence by way of
home detention are:
(a) to comply with such requirements of this Part and the
regulations as apply to the offender, and
(b) to comply with the requirements of any conditions to which the
offender's home detention order is subject.
Page 57
Clause 105 Crimes (Administration of Sentences) Bill 1999
Part 4 Imprisonment by way of home detention
105 Duration of home detention order
Unless sooner revoked, an offender's home detention order expires:
(a) at the end of the term of the sentence to which it relates, or
(b) when the offender is released on parole,
whichever occurs first.
106 Regulations
The regulations may make provision for or with respect to the
following matters:
(a) the standard conditions to be imposed on home detention
orders, including:
(i) conditions relating to an offender's employment while
the home detention order is in force, and
(ii) conditions relating to the performance of community
service work,
(b) the manner in which an offender's failure to comply with the
offender's obligations under a home detention order may be
dealt with,
(c) the service of notices on an offender.
Page 58
Crimes (Administration of Sentences) Bill 1999 Clause 107
Community service work Part 5
Performance of community service work under community service orders Division 1
Part 5 Community service work
Division 1 Performance of community service work under
community service orders
Subdivision 1 Preliminary
107 Definitions
In this Division:
assigned officer, in relation to an offender, means:
(a) the probation and parole officer or other person for the time
being assigned by the Commissioner to administer the
offender's community service order, or
(b) any other person exercising the functions of an assigned officer
in accordance with the regulations.
offender means a person in respect of whom a community service
order is in force.
relevant maximum period, in relation to a community service order,
means:
(a) 12 months, if the required number of hours under the order
(disregarding any increase under section 113) is less than 300,
or
(b) 18 months, if the required number of hours under the order
(disregarding any increase under section 113) is 300 or more,
or, if that period is extended under section 114, the period as so
extended.
required number of hours, in relation to a community service order,
means the number of hours of community service work that the
offender to whom the order relates is required by the order to perform.
supervisor means any person appointed in accordance with the
regulations to supervise offenders in the performance of community
service work.
Page 59
Clause 108 Crimes (Administration of Sentences) Bill 1999
Part 5 Community service work
Division 1 Performance of community service work under community service orders
108 Conditions governing community service work
A community service order is subject to the following conditions:
(a) the standard conditions imposed by the regulations,
(b) any additional conditions imposed by the sentencing court.
109 Obligations of offender
The obligations of an offender under a community service order are:
(a) to comply with such requirements of this Part and the
regulations as apply to the offender, and
(b) to comply with the requirements of any conditions to which the
offender's community service order is subject, and
(c) to comply with the requirements of any directions given to the
offender under this Part, and
(d) to inform the offender's assigned officer of any change in the
offender's residential address.
110 Duration of community service order
Unless sooner revoked, a community service order remains in force:
(a) until the offender has performed community service work in
accordance with the offender's obligations under the order for
the required number of hours, or
(b) until the expiry of the relevant maximum period, or
(c) in the case of a community service order under section 79 of
the Fines Act 1996, until the order is revoked or satisfied in
accordance with that Act,
whichever first occurs.
Subdivision 2 Administration of community service orders
111 Assignment of officer by Commissioner
On receiving a copy of a community service order sent under section
93 of the Crimes (Sentencing Procedure) Act 1999 or section 80 of the
Fines Act 1996, the Commissioner must assign a probation and parole
officer or, if the regulations so provide, a person other than a probation
and parole officer, to administer the order.
Page 60
Crimes (Administration of Sentences) Bill 1999 Clause 112
Community service work Part 5
Performance of community service work under community service orders Division 1
112 Performance of community service work
(1) An offender:
(a) must perform, for the required number of hours, such
community service work as the offender's assigned officer
directs, and
(b) while performing that work, must comply with the directions of
the offender's assigned officer and of the offender's supervisors
from time to time.
(2) In the case of a community service order that recommends that the
work to be performed by the offender should include:
(a) the removal or obliteration of graffiti from buildings, vehicles,
vessels and places, and
(b) the restoration of the appearance of buildings, vehicles, vessels
and places consequent on the removal or obliteration of graffiti
from them,
the work performed by the offender must, if practicable, include such
work.
(3) Any work that the offender is directed to perform must be performed
by the offender:
(a) at such times as the offender's assigned officer directs, and
(b) in such manner as is satisfactory to the offender's assigned
officer.
(4) If the regulations prescribe standards of cleanliness and sobriety to be
complied with by an offender when reporting for community service
work, the offender complies with this section only if he or she
complies with those standards.
113 Increase in hours of community service work
(1) The Commissioner may from time to time direct that an offender's
required number of hours be increased if of the opinion:
(a) that the offender has failed, without reasonable excuse, to
comply with the offender's obligations under the order, and
(b) that the offender's failure to comply with those obligations was
trivial in nature or that there are good reasons for excusing the
offender's failure to comply with those obligations.
Page 61
Clause 113 Crimes (Administration of Sentences) Bill 1999
Part 5 Community service work
Division 1 Performance of community service work under community service orders
(2) An offender's required number of hours, as increased under this
section, must not be increased so as to exceed the required number of
hours specified in the offender's community service order by more
than 10 hours.
(3) On the application of the offender, a Local Court may review such a
direction and, following the review, may confirm or revoke the
direction.
Subdivision 3 Miscellaneous
114 Extension of period of community service order
(1) An application for an extension of the relevant maximum period for an
offender's community service order may be made to the sentencing
court by the offender, or by the offender's assigned officer, on the
grounds that it would (having regard to circumstances that have arisen
since the relevant community service order was made) be in the
interests of justice to extend that period.
(2) Such an application may be made even if the relevant maximum
period for the community service order has expired.
(3) If satisfied that the applicant has established the grounds on which the
application is made, the Local Court:
(a) may extend the relevant maximum period for the offender's
community service order, and
(b) in that event, must cause notice of the extension to be sent to
the offender's assigned officer.
115 Revocation of community service orders
(1) An application for the revocation of an offender's community service
order may be made to the sentencing court, to a court of like
jurisdiction or to a court that is superior to the sentencing court.
(2) The application may be made:
(a) by the offender's assigned officer, on the grounds that the
offender has failed, without reasonable excuse, to comply with
the offender's obligations under the order, or
Page 62
Crimes (Administration of Sentences) Bill 1999 Clause 115
Community service work Part 5
Performance of community service work under community service orders Division 1
(b) by the offender, or by the offender's assigned officer, on the
grounds that it would (having regard to circumstances that have
arisen since the relevant community service order was made) be
in the interests of justice to revoke the order.
(3) If satisfied that the applicant has established the grounds on which the
application is made, the court may revoke the offender's community
service order and (if it considers it appropriate to do so) deal with the
offender in any manner in which it could have dealt with the offender
had the order not been made.
(4) An offender on whom a penalty is imposed as a consequence of the
revocation of a community service order under this section has the
same rights of appeal as if the penalty had been imposed when the
offender was convicted of the offence to which the penalty relates.
(5) A court that revokes an offender's community service order under this
section must cause notice of the revocation to be sent to the offender's
assigned officer.
(6) For the purposes of this section:
(a) failure by an offender to perform the required number of hours
of community service work under a community service order
within the relevant maximum period for the order is taken to
constitute failure by the offender to comply with the offender's
obligations under the order, and
(b) failure by an offender to comply with the offender's obligations
under one community service order (the primary failure) is
taken to constitute failure by the offender to comply with the
offender's obligations under every other community service
order that is in force when the primary failure occurs.
116 Summonses and warrants for attendance
The court to which an offender's assigned officer makes an
application:
(a) for the extension of the period for which the offender's
community service order is to remain in force, or
(b) for the revocation of the offender's community service order,
may call on the offender to appear before it and, if the offender does
not appear, may issue a warrant for the offender's arrest.
Page 63
Clause 117 Crimes (Administration of Sentences) Bill 1999
Part 5 Community service work
Division 1 Performance of community service work under community service orders
117 Regulations
The regulations may make provision for or with respect to the
following matters:
(a) the management, control, administration and supervision of
community service orders,
(b) the standard conditions to be imposed on community service
orders, including conditions relating to the performance of
community service work,
(c) the procedure to be followed when an offender reports to carry
out community service work,
(d) the performance of community service work by an offender,
(e) the circumstances in which an offender may be tested for drugs
or alcohol, the use of an offender's breath, urine or faeces for
the purposes of a test for drugs or alcohol and the nature of the
tests to be used,
(f) the service of notices on an offender,
(g) the functions of supervisors and assigned officers appointed or
employed for the purposes of this Division,
(h) the form of any warrants issued for the purposes of this
Division.
Division 2 General provisions concerning community service
work
118 Definitions
In this Division:
community service work means:
(a) community service work performed by an offender while in
full-time detention, and
(b) community service work performed by an offender under a
periodic detention order, and
(c) community service work performed by an offender under a
home detention order, and
(d) community service work performed by an offender under a
community service order.
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offender means a person who is required to perform community
service work:
(a) while in full-time detention, or
(b) under a periodic detention order, or
(c) under a home detention order, or
(d) under a community service order.
person involved, in relation to community service work, includes any
person (including a corporation):
(a) for whose benefit that work is performed, or
(b) who directs or supervises that work, specifies its terms or
conditions or controls it, or
(c) who owns or occupies the premises or land on which that work
is performed,
but does not include the offender by whom the work is performed.
119 Restrictions on directions regarding work to be performed
(1) An offender must not be directed to carry out community service work
if, in performing the work, the offender would take the place of any
other person who would otherwise be employed in that work as a
regular employee.
(2) As far as practicable, a person giving directions to an offender:
(a) must avoid any conflict with the offender's religious beliefs,
and
(b) in the case of an offender performing community service work
under a community service order, must avoid any interference
with the times (if any) at which the offender normally works or
attends a school or other educational establishment.
120 Act or omission of offender performing community service work
(1) No act or omission of an offender by whom community service work
is performed gives rise to civil liability towards any person involved in
that work if the act or omission occurs in the course of that work.
(2) A civil action that would, but for subsection (1), lie against a person
involved in community service work lies instead against the Crown.
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(3) Subsections (1) and (2) do not have effect if the act or omission
concerned was, or was a necessary part of, an act or omission that was
expressly required by the person involved in that work but neither
approved nor required by the Commissioner.
121 Act or omission of person involved in community service work
(1) No act or omission of a person involved in community service work
gives rise to civil liability towards the offender by whom the work is
performed on the part of the person so involved if the act or omission
occurs in the course of that work.
(2) A civil action that would, but for subsection (1), lie against a person
involved in community service work lies instead against the Crown.
(3) Subsections (1) and (2) do not have effect if:
(a) the work concerned was not work approved by the
Commissioner, or
(b) the act or omission concerned was, or was a necessary part of,
an act or omission intended to cause injury, loss or damage.
122 Limits to common law damages for injury to offender
(1) Divisions 1 and 3 of Part 5 of the Workers Compensation Act 1987
apply to any award of damages in respect of:
(a) any injury to which this section applies, and
(b) death resulting from or caused by an injury to which this
section applies,
in the same way as they apply to an award of damages referred to in
those Divisions.
(2) In subsection (1):
award of damages (where firstly occurring) means an award that is
made against a person involved in community service work, against
the Crown, against the Commissioner or against an officer or other
employee concerned in the administration of this Act.
injury to which this section applies means a personal injury arising out
of or in the course of an offender's performance of community service
work, and includes:
(a) a disease that is contracted by the offender in the course of the
performance of that work and to which the performance of that
work was a contributing factor, and
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(b) the aggravation, acceleration, exacerbation or deterioration of
any disease, if the performance of that work was a contributing
factor to the aggravation, acceleration, exacerbation or
deterioration.
(3) In the application of Division 3 of Part 5 of the Workers Compensation
Act 1987:
(a) a reference to a worker is taken to be a reference to an offender
who performs community service work, and
(b) a reference to a worker's employer is taken to be a reference to
a person involved in community service work (except in section
151L of that Act where it refers to the Commissioner or the
Crown), and
(c) a reference in section 151N of that Act to a person's
contributory negligence, or in section 151O of that Act to a
person's negligence in failing to take sufficient care for his or
her own safety, is taken to include any failure on the part of the
person to make a disclosure in accordance with the person's
duty under section 123 of this Act.
(4) In the application of section 151L of the Workers Compensation Act
1987, a reference to rehabilitation training is taken to be a reference to
a rehabilitation program (if any) offered by the Commissioner to an
offender who performs community service work.
(5) This section does not apply to an award of damages to which Part 6 of
the Motor Accidents Act 1988 applies.
123 Disclosure of material facts about health
An offender in respect of whom a community service order is in force
has, while the order is in force, a duty to disclose as soon as possible
to the Commissioner:
(a) any medical, physical or mental condition of which the offender
is aware (being a condition of a kind that the offender is aware
substantially increases the risk to the offender of injury in
performing work of any kind), and
(b) any substantial change in that condition.
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124 Settlement of claims
The Commissioner may, on behalf of the Crown, settle any action that
lies against the Crown because of this Division, and may do so on such
terms as he or she thinks fit.
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Division 1 Release on parole
125 Application of Part
This Part applies to:
(a) an offender who is serving a sentence by way of full-time
detention, and
(b) an offender who is serving a sentence by way of periodic
detention, and
(c) an offender who is serving a sentence by way of home
detention.
126 Eligibility for release on parole
(1) Offenders may be released on parole in accordance with this Part.
(2) An offender is eligible for release on parole only if:
(a) the offender is subject to at least one sentence for which a non-
parole period has been set, and
(b) the offender has served the non-parole period of each such
sentence and is not subject to any other sentence.
(3) Nothing in this Part authorises the release of an offender who is
required to be kept in custody in relation to an offence against a law of
the Commonwealth.
127 Parole order necessary for release
An offender who is eligible for release on parole may not be released
on parole except in accordance with a parole order directing the release
of the offender.
128 Conditions governing parole
(1) A parole order is subject to the following conditions:
(a) the standard conditions imposed by the regulations,
(b) any additional conditions imposed by the sentencing court,
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(c) any additional conditions imposed by the Parole Board under
this section.
(2) The Parole Board may from time to time, by written notice given to the
offender:
(a) impose additional conditions on a parole order, or
(b) vary or revoke any additional conditions imposed by it or by the
sentencing court on a parole order.
(3) The conditions of a parole order may include conditions requiring that
the offender 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.
(4) This section does not permit the Parole Board:
(a) to revoke any standard conditions imposed by the regulations,
or
(b) to impose any additional conditions, or vary any additional
conditions imposed by it or by the sentencing court, so as to be
inconsistent with any standard conditions imposed by the
regulations.
129 Obligations of offender
The obligations of an offender while on release on parole are:
(a) to comply with such requirements of this Part and the
regulations as apply to the offender, and
(b) to comply with the requirements of any conditions to which the
offender's parole order is subject, and
(c) to inform the Parole Board of any change in the offender's
residential address.
130 Revocation of parole order before release
The Parole Board may, by order in writing and in such circumstances
as may be prescribed by the regulations, revoke a parole order at any
time before the offender to whom the order relates is released under
the order.
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131 Release under parole order
(1) An offender's parole order is sufficient warrant for any person having
custody of the offender to release the offender in accordance with the
terms of the order.
(2) An offender who is released on parole under this Part is to be released
from custody on the day specified in the relevant parole order in that
regard (the parole date).
(3) An inmate may be released from custody:
(a) at any time on the parole date, or
(b) if the parole date is a Saturday, Sunday or public holiday and
the offender so requests, at any time during the next day that is
not a Saturday, Sunday or public holiday.
132 Sentence continues to run while offender on parole
An offender who, while serving a sentence, is released on parole in
accordance with the terms of a parole order is taken to continue
serving the sentence during the period:
(a) that begins when the offender is released, and
(b) that ends when the sentence expires or (if the parole order is
sooner revoked) when the parole order is revoked.
133 Parole order not invalidated by failure to comply with procedural
requirements
A parole order is not invalid merely because of a failure by the Parole
Board or a court to comply with any procedural requirement imposed
by or under this Act.
Division 2 Parole orders for sentences of more than 3 years
Subdivision 1 General
134 Application of Division
This Division applies to the making of a parole order for a sentence of
more than 3 years for which a non-parole period has been set.
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135 General duty of Parole Board
(1) The Parole Board may not make a parole order for an offender unless
it has decided that the release of the offender is appropriate, having
regard to the principle that the public interest is of primary importance.
(2) In making a decision under this section, the Parole Board must have
regard to the following matters:
(a) any relevant comments made by the sentencing court,
(b) the offender's antecedents,
(c) the likely effect on any victim of the offender, and on any such
victim's family, of the offender being released on parole,
(d) any report prepared by or on behalf of the Crown in relation to
the granting of parole to the offender,
(e) any report required by the regulations to be furnished to the
Parole Board in relation to the granting of parole to the
offender,
(f) the offender's conduct to date while serving his or her sentence,
including:
(i) the attitudes expressed by the offender, and
(ii) the offender's willingness to participate in rehabilitation
programs,
(g) the availability to the offender of family, community or
government support,
(h) the likelihood that, if granted parole, the offender will be able:
(i) to benefit from participation in a rehabilitation program,
and
(ii) to adapt to normal lawful community life,
(i) any special circumstances of the case,
(j) such other matters as the Parole Board considers relevant.
Subdivision 2 Offenders other than serious offenders
136 Application of Subdivision
This Subdivision applies to offenders who are not serious offenders.
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137 Consideration by Parole Board
(1) The Parole Board must consider whether or not an offender should be
released on parole:
(a) at least 60 days before the day on which the offender becomes
eligible for release on parole, and
(b) if the offender is not released on parole on or after that day,
within each successive year following that day (unless the
offender is no longer eligible for release on parole), and
(c) if the offender is released on parole on or after that day but the
parole order is revoked and a further parole order is not
subsequently made, within each successive year following that
revocation (unless the offender is no longer eligible for release
on parole).
(2) Despite subsection (1) (a), the Parole Board may defer consideration
of an offender's case to a day less than 60 days (but not less than 21
days) before the day on which the offender 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):
(a) the Parole Board is not required to consider the case of an
offender whose parole has been revoked until the offender is
returned to the correctional centre system following revocation
of the parole order, and
(b) if the offender is unlawfully at large for the whole of one or
more years following the revocation, the Parole Board may
decline to consider the offender's case at all in relation to that
year or those years.
(4) In any case, the Parole Board may decline to consider the case of an
offender for up to 3 years at a time after it last considered the grant of
parole to the offender under this Subdivision.
138 Decision of Parole Board
Immediately following its consideration of whether an offender should
be released on parole, the Parole Board:
(a) must make an order directing the release of the offender on
parole on the day on which the offender becomes eligible for
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release on parole or, if that day has passed, on a specified day
occurring not later than 7 days after the order is made, or
(b) must cause notice that the Parole Board does not intend to
make a parole order (a notice of refusal of parole) to be served
on the offender.
139 Notice of refusal of parole
A notice of refusal of parole:
(a) must be in writing, and
(b) must 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 Parole Board will meet for the purpose of
reconsidering whether the offender should be released on
parole, and
(c) must require the offender to notify the Secretary of the Parole
Board, not later than 7 days before the date set, if the offender
intends to make submissions to the Parole Board about being
released on parole, and
(d) must be accompanied by copies of the reports and other
documents intended to be used by the Parole Board in deciding
whether or not the offender should be released on parole.
140 Review by Parole Board
(1) If an offender duly notifies the Secretary of the Parole Board that the
offender intends to make submissions to the Parole Board, the
Chairperson of the Parole Board must convene a meeting of the Parole
Board, on the date set by the notice of refusal of parole, to conduct a
hearing for the purpose of reconsidering whether the offender should
be released on parole.
(2) At that hearing, or at a hearing conducted at a subsequent meeting
(which is, if practicable, to be held before the offender is eligible for
release on parole) the offender may make submissions to the Parole
Board with respect to being released on parole.
141 Decision following review
(1) After reviewing all the reports, documents and other information
placed before it, the Parole Board must decide:
(a) whether or not the offender should be released on parole, or
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(b) whether, for reasons specified by the Parole Board in its
minutes, the question of whether or not the offender should be
released on parole should be deferred.
(2) The question of whether or not the offender should be released on
parole:
(a) may be deferred once only, and
(b) may not be deferred for more than 2 months.
(3) If the Parole Board decides that the offender should be released on
parole, the Parole Board must make an order directing the release of
the offender on parole on the day on which the offender becomes
eligible for release on parole or, if that day has passed, on a specified
day occurring not later than 7 days after the order is made.
(4) If the Parole Board decides that the offender should not be released on
parole, the Parole Board:
(a) must cause the reasons for its decision to be recorded in its
minutes, and
(b) must cause notice that it does not intend to make a parole order
to be served on the offender.
Subdivision 3 Serious offenders
142 Application of Subdivision
This Subdivision applies to serious offenders.
143 Preliminary consideration by Parole Board
(1) The Parole Board must give preliminary consideration as to whether
or not a serious offender should be released on parole:
(a) at least 60 days before the day on which the offender becomes
eligible for release on parole, and
(b) if the offender is not released on parole on or after that day,
within each successive year following that day (unless the
offender is no longer eligible for release on parole), and
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(c) if the offender is released on parole on or after that day but the
parole order is revoked and a further parole order is not
subsequently made, within each successive year following that
revocation (unless the offender is no longer eligible for release
on parole).
(2) Despite subsection (1) (a), the Parole Board may defer giving
preliminary consideration of a serious offender's case to a day less than
60 days (but not less than 21 days) before the day on which the
offender 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):
(a) the Parole Board is not required to give preliminary
consideration in the case of a serious offender whose parole has
been revoked until the offender is returned to the correctional
centre system following revocation of the parole order, and
(b) if the offender is unlawfully at large for the whole of one or
more years following the revocation, the Parole Board may
decline to consider the offender's case at all in relation to that
year or those years.
(4) In any case, the Parole Board may decline to consider the case of a
serious offender for up to 3 years at a time after it last considered the
grant of parole to the offender under this Subdivision.
144 Formulation of Parole Board's initial intention
On or immediately after giving its preliminary consideration as to
whether or not a serious offender should be released on parole, the
Parole Board must formulate and record its initial intention either:
(a) to make a parole order in relation to the offender, or
(b) not to make such a parole order.
145 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 Parole Board is (subject to and in accordance with the
regulations) required to give a preliminary notice of its intention to
victims of the offender whose names are recorded in the Victims
Register.
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(2) The preliminary notice:
(a) must give an indication of the Parole Board's initial intention,
and
(b) must state that there will be an opportunity for victims to make
submissions to the Parole Board about the making of a parole
order, and
(c) must specify a period of at least 14 days during which a victim
may lodge with the Secretary of the Parole Board a notice of
intention to make submissions to the Parole Board.
(3) If a victim duly lodges with the Secretary of the Parole Board a notice
of intention to make submissions, the Parole Board:
(a) subject to and in accordance with the regulations, must give
notice to the offender that it proposes to give the offender an
opportunity to make submissions about the making of a parole
order in relation to the offender, and
(b) must set a date (occurring as soon as practicable) on which the
Parole Board will conduct a hearing for the purpose of
receiving and considering both offender submissions and victim
submissions, and
(c) must notify the offender and any such victim of the date, time
and place for the hearing.
(4) The notice referred to in subsection (3) (a):
(a) must give an indication of the Parole Board's initial intention
to make a parole order, but must indicate that this intention
could be reversed, and
(b) must specify a period of at least 14 days during which a notice
of intention to make submissions to the Parole Board may be
lodged with the Secretary of the Parole Board by the offender.
(5) In circumstances where preliminary notice need not be given of its
initial intention to make a parole order, the Parole Board may, subject
to section 152, proceed immediately to confirm its initial intention.
146 Notice to offender of initial intention not to make parole order
(1) As soon as practicable after formulating its initial intention not to make
a parole order, the Parole Board must give a preliminary notice of its
intention to the offender.
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(2) The preliminary notice:
(a) must give an indication of the Parole Board's initial intention,
and
(b) must state that there will be an opportunity for the offender to
make submissions to the Parole Board about the making of a
parole order, and
(c) must specify a period of at least 14 days during which the
offender may lodge with the Secretary of the Parole Board a
notice of intention to make submissions to the Parole Board,
and
(d) must be accompanied by copies of the reports and other
documents intended to be used by the Parole Board in deciding
whether the offender should be released on parole.
(3) If a serious offender duly lodges with the Secretary of the Parole Board
a notice of intention to make submissions, the Parole Board:
(a) subject to and in accordance with the regulations, must give
notice to all victims of the offender 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 offender, and
(b) must set a date (occurring as soon as practicable) on which the
Parole Board will conduct a hearing for the purpose of
receiving and considering both offender submissions and victim
submissions, and
(c) must notify the offender, and any victim who duly lodges a
notice of intention to make submissions, of the date, time and
place for the hearing.
(4) The notice referred to in subsection (3) (a):
(a) must give an indication of the Parole Board's initial intention
not to make a parole order, but must indicate that this intention
could be reversed, and
(b) must specify a period of at least 14 days during which a victim
may lodge with the Secretary of the Parole Board a notice of
intention to make submissions to the Parole Board.
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147 Submissions by offender and victims
(1) At any hearing notified under section 145 or 146, both the offender
and any victim who duly lodges a notice of intention to make
submissions are entitled to be present and to have a reasonable
opportunity to make relevant submissions.
(2) The Parole Board may postpone or adjourn a hearing for any reason
that seems appropriate to it.
(3) Submissions may be made in either or both of the following ways:
(a) they may be made in writing, and presented to the Parole Board
either in advance of or at the hearing,
(b) they may be made orally (but, in the case of victim
submissions, only with the approval of the Parole Board).
148 Principles on which Parole Board's final decision to be made
(1) The Parole Board is to make its final decision as to whether or not to
make a parole order on the following principles:
(a) that the Parole 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) that the Parole 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 offender submissions,
(c) that the Parole Board will confirm its initial intention not to
make a parole order if there are no offender submissions,
(d) that the Parole Board will reconsider its initial intention not to
make a parole order if there are offender submissions, and will
in that event take into account any victim submissions.
(2) The Parole Board must consider all submissions made in accordance
with this Subdivision and must disregard all other submissions.
149 Decision following review
(1) After reviewing all the reports, documents, submissions and other
information placed before it, the Parole Board must decide:
(a) whether or not the offender should be released on parole, or
(b) whether, for reasons specified by the Parole Board in its
minutes, the question of whether or not the offender should be
released on parole should be deferred.
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(2) The question of whether or not the offender should be released on
parole:
(a) may be deferred once only, and
(b) may not be deferred for more than 2 months.
(3) If the Parole Board decides than the offender should be released on
parole, it must make an order directing the release of the offender on
parole on a day specified in accordance with section 151.
(4) If the Parole Board decides that the offender should not be released on
parole, the Parole Board:
(a) must cause the reasons for its decision to be recorded in its
minutes, and
(b) must cause notice that it does not intend to make a parole order
to be served on the offender.
150 Decision where no review
(1) The Parole Board must 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 Parole Board must confirm its initial intention not to make a
parole order if there are no offender submissions.
(3) If the Parole Board confirms its initial intention to make a parole order,
it must make an order directing the release of the offender on parole on
a day specified in accordance with section 151.
(4) If the Parole Board confirms its initial intention not to make a parole
order:
(a) it must cause the reasons for its decision to be recorded in its
minutes, and
(b) it must cause notice that it does not intend to make a parole
order to be served on the offender.
151 Day of release
(1) The day of release to be specified in a parole order under section 149
or 150 is to be:
(a) if the day on which the offender becomes eligible for release on
parole occurs before the order is made or on or before the
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seventh day after the order is made, a specified day within 7
days after the seventh day after the order is made, or
(b) if the day on which the offender becomes eligible for release on
parole occurs after the seventh day after the order is made, the
day on which the offender becomes eligible for release on
parole.
(2) If an application is made to the Court of Criminal Appeal within 7
days after a parole order is made, the order is suspended:
(a) until the application is dealt with by the Court or the application
is withdrawn, or
(b) if the direction of the Court of Criminal Appeal includes a
requirement that the Parole Board reconsider its decision in the
light of the direction, until the Parole Board revokes the order
or confirms it with or without modifications.
(3) Any such suspension automatically lapses at the end of the period of
28 days after the date on which a direction referred to in subsection (2)
(b) is given if during that period the Parole Board neither revokes the
parole order nor confirms it with or without modifications.
152 Reasons to be provided for rejection of Review Council's advice
(1) If the Parole Board rejects the advice of the Review Council
concerning the release on parole of a serious offender, the Parole
Board must state in writing its reasons for rejecting that advice.
(2) The Parole Board must forward a copy of those reasons to the Review
Council.
(3) The Review Council may make submissions to the Parole Board
concerning the rejection of its advice within 21 days of that rejection.
(4) The Parole Board is not to make a final decision concerning the release
of the offender during the period referred to in subsection (3).
153 Submissions by State
(1) The State may at any time make submissions to the Parole Board
concerning the release on parole of a serious offender.
(2) If the State does so, the Parole Board is not to make a final decision
concerning the release of the offender until it has taken any such
submission into account.
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(3) The regulations may make provision for or 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 the regulations, by any agent of the State.
154 Matters to be considered concerning certain serious offenders
(1) This section applies to a serious offender whose sentence for life is the
subject of a determination under Schedule 1 to the Crimes (Sentencing
Procedure) Act 1999.
(2) The Parole Board, in exercising its functions under this Part in relation
to a serious offender to whom this section applies:
(a) must have regard to and give substantial weight to any relevant
recommendations, observations and comments made by the
sentencing court, and
(b) must give consideration to adopting or giving effect to any such
recommendations, observations and comments and to the
intention of the sentencing court when making them, and
(c) to the extent that it declines to adopt or give effect to any such
recommendations, observations and comments, must state its
reasons for doing so,
and must, in particular, have regard to the need to preserve the safety
of the community.
Subdivision 4 Applications to Court of Criminal Appeal
155 Application to Court of Criminal Appeal by offender
(1) If:
(a) the Parole Board decides that an offender should not be
released on parole, and
(b) the offender alleges that the decision of the Parole Board has
been made on the basis of false, misleading or irrelevant
information,
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Crimes (Administration of Sentences) Bill 1999 Clause 155
Parole Part 6
Parole orders for sentences of more than 3 years Division 2
the offender may, in accordance with rules of court, apply to the Court
of Criminal Appeal for a direction to be given to the Parole Board as
to whether the information was false, misleading or irrelevant.
(2) The Court of Criminal Appeal may give such directions with respect
to the information as it thinks fit.
(3) An application under this section is to be considered by the Court of
Criminal Appeal if and only if it is satisfied that the application is not
an abuse of process and that there appears to be sufficient evidence to
support the application.
156 Application to Court of Criminal Appeal by State
(1) If:
(a) the Parole Board decides that a serious offender should be
released on parole, and
(b) the Attorney General or the Director of Public Prosecutions
alleges that the decision of the Parole Board has been made on
the basis of false, misleading or irrelevant information,
the 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 Parole Board as to whether the
information was false, misleading or irrelevant.
(2) The Court of Criminal Appeal may give such directions with respect
to the information as it thinks fit.
157 Appearance in person of offender
(1) At the hearing or determination of an application under this
Subdivision, an offender is not entitled to appear in person, except by
leave of the Court of Criminal Appeal.
(2) The power of the Court of Criminal Appeal to grant an offender leave
to appear in person at the hearing or determination of an application
under this Subdivision 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 appear.
Page 83
Clause 158 Crimes (Administration of Sentences) Bill 1999
Part 6 Parole
Division 3 Parole orders for sentences of 3 years or less
Division 3 Parole orders for sentences of 3 years or less
158 Effect of parole orders made by court
(1) A parole order made by a court under section 50 of the Crimes
(Sentencing Procedure) Act 1999 in relation to a sentence is
conditional on the offender being eligible for release on parole in
accordance with section 126 of this Act at the end of the non-parole
period of the sentence.
(2) If the offender is not eligible for release at that time, the offender is
entitled to be released on parole as soon as the offender becomes so
eligible.
(3) This section does not authorise the release on parole of an offender
who is also serving a sentence of more than 3 years for which a non-
parole period has been set unless the offender is entitled to be released
under Division 2.
159 Making of parole orders by Parole Board
(1) The Parole Board may make an order directing the release of an
offender on parole if:
(a) the offender is subject to a sentence of 3 years or less, being a
sentence for which a non-parole period has been set, and
(b) there is no parole order in force with respect to the offender
under this Act, under the Crimes (Sentencing Procedure) Act
1999 or under a law of some other State or Territory.
(2) Division 2 applies to the making of a parole order under this section.
Division 4 Parole orders in exceptional circumstances
160 Parole orders in exceptional circumstances
(1) The Parole Board may make an order directing the release of an
offender on parole who (but for this section) is not otherwise eligible
for release on parole if the offender is dying or if the Parole Board is
satisfied that it is necessary to release the offender on parole because
of exceptional extenuating circumstances.
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Crimes (Administration of Sentences) Bill 1999 Clause 160
Parole Part 6
Parole orders in exceptional circumstances Division 4
(2) The Parole Board is not required to consider an application for a parole
order under this section, or to conduct a hearing, if it decides not to
grant such an application.
(3) Divisions 2 and 3 do not apply to a parole order under this section.
(4) This section does not apply in respect of an offender serving a sentence
for life.
Division 5 Miscellaneous
161 Regulations
The regulations may make provision for or with respect to the
following matters:
(a) the management, control, administration and supervision of
parole orders,
(b) the standard conditions to be imposed on parole orders,
(c) the service of notices on an offender,
(d) the functions of probation and parole officers appointed or
employed for the purposes of this Part.
Page 85
Clause 162 Crimes (Administration of Sentences) Bill 1999
Part 7 Revocation by Parole Board of certain orders
Division 1 Periodic detention orders
Part 7 Revocation by Parole Board of certain orders
Division 1 Periodic detention orders
162 Conduct of inquiry into suspected breach of obligations
(1) If the Parole Board has reason to suspect that an offender has failed to
comply with the offender's obligations under a periodic detention
order, the Parole Board may, whether or not the order has expired,
conduct an inquiry into the matter.
(2) The offender to whom the periodic detention order relates may make
submissions to the Parole Board in relation to the matters under
inquiry.
163 Revocation of periodic detention order
(1) The Parole Board may make an order (a revocation order) revoking a
periodic detention order:
(a) if it is satisfied that the offender has failed to comply with the
offender's obligations under the order, or
(b) if the offender fails to appear before the Parole Board when
called on to do so under section 180.
(2) The Parole Board must revoke an offender's periodic detention order
on the application of the Commissioner if it is satisfied:
(a) that the offender has failed to report to a detention centre for 3
or more detention periods, and
(b) that the failures to report occurred otherwise than on leave of
absence and are not the subject of an exemption under section
90.
(3) The Parole Board may refuse to revoke an offender's periodic
detention order on the grounds referred to in subsection (2) if it is
satisfied:
(a) that the offender:
(i) applied for, and ought to have been granted, leave of
absence, or
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Crimes (Administration of Sentences) Bill 1999 Clause 163
Revocation by Parole Board of certain orders Part 7
Periodic detention orders Division 1
(ii) applied for, and ought to have been granted, an
exemption under section 90,
with respect to one or more detention periods, and
(b) that the total number of detention periods for which the
offender has failed to report would, had the leave or exemption
been granted, be less than 3,
and, in that event, leave of absence is taken to have been granted with
respect to the detention periods referred to in paragraph (a).
(4) A revocation order may be made:
(a) whether or not the offender has been called on to appear before
the Parole Board, and
(b) whether or not the Parole Board has held an inquiry.
(5) A revocation order must state the reason for which it is made.
164 Effect of revocation order
(1) A revocation order takes effect, or is taken to have taken effect, on the
date on which it is made or on such earlier date as the Parole Board
thinks fit.
(2) The earliest date on which the revocation order may take effect is the
date of the first occasion on which it appears to the Parole Board that
the offender failed to comply with the offender's obligations under the
periodic detention order.
(3) If an offender is not taken into custody until after the day on which the
revocation order takes effect:
(a) the term of the offender's sentence, and
(b) if the order takes effect during a non-parole period of the
sentence, the non-parole period of the sentence,
are, by this subsection, extended by the number of days the person was
at large after the order took effect.
165 Parole Board may order home detention
(1) If the Parole Board revokes a periodic detention order under this
Division, it may, subject to Part 6 of the Crimes (Sentencing
Procedure) Act 1999, make an order directing that the remainder of the
sentence to which the periodic detention order relates is to be served
by way of home detention.
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Clause 165 Crimes (Administration of Sentences) Bill 1999
Part 7 Revocation by Parole Board of certain orders
Division 1 Periodic detention orders
(2) An order made under this section is taken to be a home detention order
made under section 7 of the Crimes (Sentencing Procedure) Act 1999.
Division 2 Home detention orders
166 Conduct of inquiry into suspected breach of obligations
(1) If the Parole Board has reason to suspect that an offender has failed to
comply with the offender's obligations under a home detention order,
the Parole Board may, whether or not the order has expired, conduct
an inquiry into the matter.
(2) The offender to whom the home detention order relates may make
submissions to the Parole Board in relation to the matters under
inquiry.
167 Revocation of home detention order
(1) The Parole Board may make an order (a revocation order) revoking a
home detention order:
(a) if it is satisfied that the offender has failed to comply with the
offender's obligations under the order, or
(b) if the offender fails to appear before the Parole Board when
called on to do so under section 180.
(2) A revocation order may be made:
(a) whether or not the offender has been called on to appear before
the Parole Board, and
(b) whether or not the Parole Board has held an inquiry.
(3) A revocation order must state the reason for which it is made.
(4) If it is satisfied that the offender has failed to comply with the
offender's obligations under a home detention order but is not of the
opinion that the order should be revoked, the Parole Board may instead
impose further conditions on the order, or vary any of the existing
conditions of the order, in accordance with section 103.
(5) This section does not apply to an offender's failure to comply with the
offender's obligations under a home detention order if that failure has
been dealt with in accordance with the regulations referred to in
section 106.
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Crimes (Administration of Sentences) Bill 1999 Clause 168
Revocation by Parole Board of certain orders Part 7
Home detention orders Division 2
168 Effect of revocation order
(1) A revocation order takes effect, or is taken to have taken effect, on the
date on which it is made or on such earlier date as the Parole Board
thinks fit.
(2) The earliest date on which a revocation order may take effect is the
date of the first occasion on which it appears to the Parole Board that
the offender failed to comply with the offender's obligations under the
home detention order.
(3) If an offender is not taken into custody until after the day on which the
revocation order takes effect:
(a) the term of the offender's sentence, and
(b) if the order takes effect during a non-parole period of the
sentence, the non-parole period of the sentence,
are, by this subsection, extended by the number of days the person was
at large after the order took effect.
Division 3 Parole orders
169 Conduct of inquiry into suspected breach of obligations
(1) If the Parole Board has reason to suspect that an offender has failed to
comply with the offender's obligations under a parole order, the Parole
Board may, whether or not the order has expired, conduct an inquiry
into the matter.
(2) The offender to whom the parole order relates may make submissions
to the Parole Board in relation to the matters under inquiry.
(3) The Parole Board is not required to inquire into a possible
contravention of a parole order made by a court unless the offender to
whom the order relates is required by the conditions of the order to be
supervised.
170 Revocation of parole order
(1) The Parole Board may make an order (a revocation order) revoking a
parole order:
(a) if it is satisfied that the offender has failed to comply with the
offender's obligations under the order, or
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Clause 170 Crimes (Administration of Sentences) Bill 1999
Part 7 Revocation by Parole Board of certain orders
Division 3 Parole orders
(b) if the offender fails to appear before the Parole Board when
called on to do so under section 180.
(2) A revocation order may be made:
(a) whether or not the offender has been called on to appear before
the Parole Board, and
(b) whether or not the Parole Board has held an inquiry.
(3) A revocation order must state the reason for which it is made.
(4) If it is satisfied that the offender has failed to comply with the
offender's obligations under a parole order but is not of the opinion
that the order should be revoked, the Parole Board may instead impose
further conditions on the order, or vary any of the existing conditions
of the order, in accordance with section 128.
171 Effect of revocation order
(1) A revocation order takes effect, or is taken to have taken effect, on the
date on which it is made or on such earlier date as the Parole Board
thinks fit.
(2) The earliest date on which a revocation order may take effect is the
date of the first occasion on which it appears to the Parole Board that
the offender failed to comply with the offender's obligations under the
parole order.
(3) If an offender is not taken into custody until after the day on which the
revocation order takes effect, the term of the offender's sentence is, by
this subsection, extended by the number of days the person was at
large after the order took effect.
172 Request by State to revoke parole order
The Attorney General or the Director of Public Prosecutions may
request the Parole Board to exercise its powers to revoke a parole order
in relation to a serious offender on the ground that the order has been
made on the basis of false, misleading or irrelevant information.
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Crimes (Administration of Sentences) Bill 1999 Clause 173
Revocation by Parole Board of certain orders Part 7
Post-revocation procedures and rights of appeal Division 4
Division 4 Post-revocation procedures and rights of appeal
173 Notice of revocation
(1) As soon as practicable after the Parole Board revokes an offender's
periodic detention order, home detention order or parole order, the
Parole Board must cause a notice (a revocation notice) to be served on
the offender.
(2) A revocation notice:
(a) must be in the form prescribed by the regulations, and
(b) must set a date (occurring not earlier than 14, nor later than 28,
days after the date on which it is served) on which the Parole
Board is to meet:
(i) for the purpose of reconsidering the revocation of the
periodic detention order, home detention order or parole
order, and
(ii) for the purpose of reconsidering the date specified by
the notice as the date on which the revocation order
takes effect, if that date is an earlier date than the date
on which the revocation order was made, and
(c) must require the offender to notify the Secretary of the Parole
Board, not later than 7 days before the date so set, if the
offender intends to make submissions to the Parole Board in
relation to the reconsideration of those matters, and
(d) must be accompanied by:
(i) a copy of the revocation order by which the periodic
detention order, home detention order or parole order
was revoked, and
(ii) copies of the reports and other documents used by the
Parole Board in making the decision to revoke the
periodic detention order, home detention order or parole
order and, if appropriate, the decision to specify the
earlier day.
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Clause 174 Crimes (Administration of Sentences) Bill 1999
Part 7 Revocation by Parole Board of certain orders
Division 4 Post-revocation procedures and rights of appeal
174 Review of revocation
(1) If an offender duly notifies the Secretary of the Parole Board that the
offender intends to make submissions to the Parole Board, the
Chairperson of the Parole Board must convene a meeting of the Parole
Board, on the date set by the revocation notice, to conduct a hearing
for either or both of the following purposes, as the case requires:
(a) for the purpose of reconsidering the revocation of the periodic
detention order, home detention order or parole order, or
(b) for the purpose of reconsidering the date specified by the notice
as the date on which the revocation order takes effect, if that
date is an earlier date than the date on which the revocation
order was made.
(2) At the hearing, or at a hearing conducted at a subsequent meeting, the
offender may make submissions to the Parole Board with respect to the
revocation of the periodic detention order, home detention order or
parole order.
175 Decision after review
(1) After reviewing all the reports, documents and other information
placed before it, the Parole Board must decide whether or not:
(a) to rescind the revocation of the periodic detention order, home
detention order or parole order concerned, or
(b) to rescind or vary the specification of the earlier day.
(2) If the Parole Board rescinds the revocation of a periodic detention
order because it is satisfied:
(a) that the offender:
(i) applied for, and ought to have been granted, leave of
absence, or
(ii) applied for, and ought to have been granted, an
exemption under section 90,
with respect to one or more detention periods, and
(b) that the total number of detention periods for which the
offender has failed to report would, had the leave or exemption
been granted, be less than 3,
leave of absence is taken to have been granted with respect to the
detention periods referred to in paragraph (a).
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Crimes (Administration of Sentences) Bill 1999 Clause 175
Revocation by Parole Board of certain orders Part 7
Post-revocation procedures and rights of appeal Division 4
(3) A decision under this section has effect according to its terms even if
the periodic detention order, home detention order or parole order
concerned has expired.
(4) If the Parole Board rescinds the revocation of the periodic detention
order, home detention order or parole order concerned, any other
periodic detention order, home detention order or parole order
consequentially revoked under section 179 is revived and has effect as
if it had not been revoked.
Division 5 Applications to Court of Criminal Appeal
176 Application to Court of Criminal Appeal by offender
(1) If:
(a) the Parole Board revokes a periodic detention order, home
detention order or parole order, and
(b) the offender to whom the periodic detention order, home
detention order or parole order relates alleges that the order has
been revoked on the basis of false, misleading or irrelevant
information,
the offender may, in accordance with rules of court, apply to the Court
of Criminal Appeal for a direction to be given to the Parole Board as
to whether the information was false, misleading or irrelevant.
(2) The Court of Criminal Appeal may give such directions with respect
to the information as it thinks fit.
(3) An application under this section is to be considered by the Court of
Criminal Appeal if and only if it is satisfied that the application is not
an abuse of process and that there appears to be sufficient evidence to
support the application.
177 Application to Court of Criminal Appeal by State
If:
(a) the Parole Board refuses or fails within 28 days after a request
by the Attorney General or the Director of Public Prosecutions
under section 172 to revoke a parole order in relation to a
serious offender, and
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Clause 177 Crimes (Administration of Sentences) Bill 1999
Part 7 Revocation by Parole Board of certain orders
Division 5 Applications to Court of Criminal Appeal
(b) the Attorney General or the Director of Public Prosecutions
alleges that the parole order has been made on the basis of
false, misleading or irrelevant information,
the 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 Parole 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.
178 Appearance in person of offender
(1) At the hearing or determination of an application under this Division,
an offender is not entitled to appear in person, except by leave of the
Court of Criminal Appeal.
(2) The power of the Court of Criminal Appeal to grant an offender leave
to appear in person at the hearing or determination of an application
under this Division 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 appear.
Division 6 Miscellaneous
179 Consequential revocation of other orders
(1) If:
(a) an offender's periodic detention order, home detention order or
parole order is revoked under this Part, or
(b) an offender is sentenced to imprisonment for more than one
month,
the Parole Board may revoke any or all of the other periodic detention
orders, home detention orders or parole orders that are in force, or are
yet to come into force, in relation to the offender.
(2) Divisions 1, 2 and 3 do not apply to the revocation of a periodic
detention order, home detention order or parole order under this
section.
(3) No appeal lies against the revocation of a periodic detention order,
home detention order or parole order under this section.
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Crimes (Administration of Sentences) Bill 1999 Clause 180
Revocation by Parole Board of certain orders Part 7
Miscellaneous Division 6
180 Offenders to attend Parole Board when called on
(1) For the purposes of an inquiry under this Part, the Parole Board:
(a) may call on an offender to appear before it and, if the offender
does not appear, may issue a warrant for the offender's arrest,
or
(b) if of the opinion that the offender will not appear if called on to
do so, may, without calling on the offender to appear before it,
issue a warrant for the offender's arrest.
(2) A warrant under this section:
(a) is to be signed by the Chairperson, Alternate Chairperson or
Deputy Chairperson of the Parole Board, and
(b) is sufficient authority for a police officer to arrest the offender
named in the warrant, to convey the offender to the place
specified in the warrant and to deliver the offender into the
custody of the Parole Board.
(3) The regulations may make provision for or with respect to the form of
any warrants issued for the purposes of this section.
181 Warrants committing offenders to correctional centres
(1) On revoking a periodic detention order, home detention order or parole
order in relation to a sentence, the Parole Board may issue a warrant
committing the offender to a correctional centre to serve the remainder
of the sentence by way of full-time detention.
(2) A warrant under this section is to be signed by the Chairperson,
Alternate Chairperson or Deputy Chairperson of the Parole Board.
(3) A warrant under this section is sufficient authority:
(a) for any police officer to arrest, or to have custody of, the
offender named in the warrant, to convey the offender to the
correctional centre specified in the warrant and to deliver the
offender into the custody of the governor of that correctional
centre, and
(b) for the governor of the correctional centre specified in the
warrant to have custody of the offender named in the warrant
for the remainder of the sentence to which the warrant relates.
(4) The regulations may make provision for or with respect to the form of
any warrants issued for the purposes of this section.
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Clause 182 Crimes (Administration of Sentences) Bill 1999
Part 7 Revocation by Parole Board of certain orders
Division 6 Miscellaneous
182 Functions may be exercised after order has expired
The Parole Board may exercise any function under this Part in relation
to a periodic detention order, home detention order or parole order,
even if the order has expired.
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Crimes (Administration of Sentences) Bill 1999 Clause 183
The Parole Board Part 8
Constitution and functions Division 1
Part 8 The Parole Board
Division 1 Constitution and functions
183 Constitution of Parole Board
(1) There is constituted by this Act a Parole Board.
(2) The Parole Board is to consist of at least 10, but not more than 22,
members, of whom:
(a) 3 are to be judicially qualified persons (referred to as judicial
members), appointed by the Governor, and
(b) one is to be a police officer, appointed by the Commissioner of
Police, and
(c) one is to be an officer of the Probation and Parole Service,
appointed by the Commissioner of Corrective Services, and
(d) one is to be the Secretary of the Parole Board, and
(e) the remainder (referred to as community members) are to be
persons who reflect as closely as possible the composition of
the community at large, appointed by the Governor.
(3) For the purposes of this Act:
(a) the members referred to in subsection (2) (a) and (e) are
referred to as appointed members, and
(b) the members referred to in subsection (2) (b) and (c) are
referred to as official members, and
(c) the members referred to in subsection (2) (b)-(e) are referred to
as non-judicial members.
(4) Schedule 1 has effect with respect to the constitution and procedure of
the Parole Board.
184 Divisions of Parole Board
(1) The Chairperson may from time to time constitute Divisions of the
Parole Board and dissolve any Division so constituted.
(2) A Division is to consist of:
(a) a judicial member, and
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Clause 184 Crimes (Administration of Sentences) Bill 1999
Part 8 The Parole Board
Division 1 Constitution and functions
(b) 3 non-judicial members, of whom at least one is an official
member and at least one is a community member.
(3) The Chairperson may delegate to a Division any of the functions of the
Parole Board.
(4) For the purpose of its exercise of any function so delegated, a Division
is taken to be the Parole Board.
185 Functions of Parole Board
The Parole Board has the functions conferred or imposed on it by or
under this or any other Act or law.
Division 2 Inquiries
186 Power to require attendance of witnesses and production of documents
(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 Parole Board for the purpose of giving
evidence, or
(b) to produce to the Parole Board 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 Parole Board,
at a time, date and place specified in the instrument.
(2) A judicial member may require a person who appears before the Parole
Board 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 Parole Board, the Parole Board may
take possession of the document for such period as it considers
necessary for the purposes of the proceedings before it.
(4) This section does not require a person to produce to the Parole Board
any document the production of which the Minister certifies in writing:
(a) may endanger an offender or any other person, or
(b) may otherwise be contrary to the public interest.
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Crimes (Administration of Sentences) Bill 1999 Clause 187
The Parole Board Part 8
Inquiries Division 2
187 Examination by judicial member
(1) A judicial member may require a person (including an officer or
employee of the Crown) who appears before the Parole Board to
answer a question that is reasonably related to the proceedings before
the Parole Board.
(2) A natural person is not excused from answering a question put to the
person by a judicial member on the ground that the answer tends to
incriminate the person.
(3) If a person claims, before answering such a question, that the answer
tends to incriminate the person, neither the question nor the answer is
admissible in evidence against the person in criminal proceedings,
other than proceedings for an offence under section 188 (c) or on a
charge of perjury in respect of the answer.
188 Offences
A person must not:
(a) refuse, fail or neglect to comply with a requirement under
section 186 or 187, except to the extent to which the person is
lawfully excused from complying with the requirement, or
(b) produce any document, knowing it to be false or misleading in
a material particular, in purported compliance with a
requirement under section 186, or
(c) make an unsworn statement, knowing it to be false or
misleading in a material particular, when appearing before the
Parole Board.
Maximum penalty: 5 penalty units.
189 Misconduct before Parole Board
(1) A person must not, during a hearing at a meeting of the Parole Board:
(a) wilfully insult any member of the Parole Board, or
(b) wilfully misbehave during the hearing, or
(c) wilfully and without lawful excuse interrupt the hearing, or
(d) wilfully and without lawful excuse disobey a direction of the
judicial member presiding at the hearing.
Maximum penalty: 10 penalty units.
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Clause 189 Crimes (Administration of Sentences) Bill 1999
Part 8 The Parole Board
Division 2 Inquiries
(2) The judicial member presiding at the hearing may direct a person who
does any such thing to leave the place where the hearing is being
conducted.
190 Rights of parties making submissions
(1) At any meeting of the Parole Board at which any person (including the
State) is entitled under this Act to make submissions to the Parole
Board, the person:
(a) may be represented by a legal practitioner or, with the consent
of the Parole Board, by any other person, and
(b) may call and examine any witness who attends, including any
witness called by the Parole Board, and
(c) may produce documents and exhibits to the Parole Board, and
(d) may give evidence on oath, and
(e) may otherwise adduce, orally or in writing, to the Parole Board
such matters, and address the Parole Board on such matters, as
are relevant to the proceedings before the Parole Board.
(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 6, or
(b) without the approval of the Parole Board:
(i) to give evidence on oath, or
(ii) to otherwise adduce any matter orally to the Parole
Board or to address the Parole Board on any matter.
191 Witnesses' expenses
A person who is required to appear or give evidence before the Parole
Board (other than an offender 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.
Division 3 Miscellaneous
192 Report to Minister
(1) As soon as practicable after 31 December in each year, the Parole
Board must furnish to the Minister for presentation to Parliament a
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Crimes (Administration of Sentences) Bill 1999 Clause 192
The Parole Board Part 8
Miscellaneous Division 3
report giving information as to the Parole Board's activities during that
year and setting out statistical information as to:
(a) the number of cases considered by the Parole Board, and
(b) the number of persons released on parole under this Act, and
(c) the number of parole orders amended, varied or revoked by the
Parole Board, and
(d) the number of existing licences (within the meaning of the
repealed Sentencing Act 1989) amended, varied or revoked by
the Parole Board, and
(e) such other matters as the Parole Board considers appropriate.
(2) The Parole Board:
(a) must report to the Minister on the release of any offender, if the
question of whether the offender should be released is referred
by the Minister to the Parole Board, and
(b) may report to the Minister on whether the detention in strict
custody in a correctional centre of a person under section 39 of
the Mental Health (Criminal Procedure) Act 1990 should be
continued or not.
193 Information concerning offenders and correctional centres
(1) Any person who is a member of the Parole Board, or is authorised in
writing by the Parole Board in that behalf, is entitled to free and
unfettered access at all reasonable times to any offender confined in a
correctional centre:
(a) whose release on parole is being considered by the Parole
Board, or
(b) whose case has been referred to the Parole Board by the
Minister, or
(c) in respect of whom a non-parole period is applicable, or
(d) who is being held in strict custody in a correctional centre
under section 39 of the Mental Health (Criminal Procedure)
Act 1990, or
(e) who is a licensee (within the meaning of the repealed
Sentencing Act 1989) or a person whose existing licence
(within the meaning of the repealed Sentencing Act 1989) has
been revoked,
Page 101
Clause 193 Crimes (Administration of Sentences) Bill 1999
Part 8 The Parole Board
Division 3 Miscellaneous
and it is the duty of the governor of the correctional centre to provide
any such person with facilities for communicating with or observing
any such offender.
(2) The Commissioner of Corrective Services or the Commissioner of
Police must, if so requested by the Parole Board, supply to the Parole
Board reports on the conduct and character of:
(a) any offender referred to in subsection (1), and
(b) any offender who is for the time being subject to a parole order.
(3) If any offender referred to in subsection (2) was formerly a person
detained in a detention centre, within the meaning of the Children
(Detention Centres) Act 1987, the Director-General of the Department
of Juvenile Justice must, if requested by the Parole Board, supply to
the Parole Board a report on the conduct and character of the offender
while as a person detained in a detention centre.
(4) The Director-General of the Department of Health must, if requested
by the Parole Board:
(a) arrange for psychological, medical or psychiatric examinations
to be carried out on any offender referred to in subsection (2),
and
(b) supply to the Parole Board all reports on the result of any such
examination.
(5) In any report on an offender supplied to the Parole Board under this
section, there must be included such information available to the
person supplying the report as may be of assistance to the Parole Board
in considering the case of the offender to whom the report relates.
194 Security of certain information
Nothing in this Act requires an offender 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 offender may, in the opinion of a judicial
member:
(a) adversely affect the security, discipline or good order of a
correctional centre, or
(b) endanger the offender or any other person.
Page 102
Crimes (Administration of Sentences) Bill 1999 Clause 195
The Serious Offenders Review Council Part 9
Constitution and functions Division 1
Part 9 The Serious Offenders Review Council
Division 1 Constitution and functions
195 Constitution of Review Council
(1) There is constituted by this Act the Serious Offenders Review Council.
(2) The Review Council is to consist of 14 members, of whom:
(a) 3 are to be judicially qualified persons (referred to as judicial
members), appointed by the Governor, and
(b) 2 members are to be officers of the Department (referred to as
official members), appointed by the Commissioner, and
(c) the remainder (referred to as community members) are to be
persons who reflect as closely as possible the composition of
the community at large, appointed by the Governor.
(3) For the purposes of this Act:
(a) the members referred to in subsection (2) (a) and (c) are
referred to as appointed members, and
(b) the members referred to in subsection (2) (b) and (c) are
referred to as non-judicial members.
(4) Schedule 2 has effect with respect to the constitution and procedure of
the Review Council.
196 Divisions of Review Council
(1) The Chairperson may from time to time constitute Divisions of the
Review Council and dissolve any Division so constituted.
(2) A Division is to consist of a judicial member, a community member
and an official member.
(3) The Chairperson may delegate to a Division any of the functions of the
Review Council.
(4) For the purpose of its exercise of any function so delegated, a Division
is taken to be the Review Council.
Page 103
Clause 197 Crimes (Administration of Sentences) Bill 1999
Part 9 The Serious Offenders Review Council
Division 1 Constitution and functions
197 Functions of Review Council
(1) The Review Council has such functions as are conferred on it by or
under this or any other Act or law.
(2) In particular, the Review Council has the following functions:
(a) to provide advice and make recommendations to the
Commissioner with respect to the following:
(i) the security classification of serious offenders,
(ii) the placement of serious offenders,
(iii) developmental programs provided for serious offenders,
(b) to provide reports and advice to the Parole Board concerning
the release on parole of serious offenders,
(c) to prepare and submit reports to the Supreme Court with
respect to applications under Schedule 1 to the Crimes
(Sentencing Procedure) Act 1999,
(d) to review segregated custody, protective custody and extension
directions under Division 2 of Part 2,
(e) to provide reports and advice to the Minister and to such other
persons or bodies as may be prescribed by the regulations,
(f) to perform such other functions as may be prescribed by the
regulations in relation to the management of serious offenders
and other offenders.
198 Matters to be considered in relation to certain advisory functions
(1) When exercising its functions under section 197 (2) (a) in relation to
a serious offender, the Review Council must consider the public
interest and any other relevant matters.
(2) In the case of its function under section 197 (2) (a) (i), the Review
Council must also consider, in accordance with the regulations:
(a) any submissions made by the State, and
(b) any submissions made by victims of the serious offender,
before advising or recommending that a serious offender should be
given a less stringent security classification if it appears to the Review
Council that the new classification would allow the offender to become
eligible for unescorted leave of absence under a local leave permit or
interstate leave permit.
Page 104
Crimes (Administration of Sentences) Bill 1999 Clause 198
The Serious Offenders Review Council Part 9
Constitution and functions Division 1
(3) Without limiting the generality of the meaning of public interest in
subsection (1), the Review Council is to take into account the
following matters when considering the public interest:
(a) the protection of the public, which is to be paramount,
(b) the nature and circumstances of the offence,
(c) the reasons and recommendations of the sentencing court,
(d) the criminal history and family background of the offender,
(e) the time the offender has served in custody and the time the
offender has yet to served in custody,
(f) the offender's conduct while in custody, including the
offender's conduct during previous imprisonment, if applicable,
(g) the attitude of the offender,
(h) the position of and consequences to any victim of the offender,
including the victim's family,
(i) the need to maintain public confidence in the administration of
criminal justice,
(j) the need to reassure the community that serious offenders are
in secure custody as long as it is appropriate,
(k) the rehabilitation of the offender and the re-entry of the
offender into the community as a law-abiding citizen,
(l) the availability to the offender of family, departmental and other
support,
(m) such other factors as are prescribed by the regulations.
199 Matters to be considered in relation to offenders serving existing life
sentences
(1) This section applies to an offender serving an existing life sentence (as
referred to in Schedule 1 to the Crimes (Sentencing Procedure) Act
1999) or a sentence for which a determination has been made under
that Schedule.
(2) The Review Council, in exercising its functions under section 197 (2)
(b) and (c), and under any other prescribed provisions of this Act or the
regulations, in relation to an offender to whom this section applies:
(a) must have regard to and give substantial weight to any relevant
recommendations, observations and comments made by the
sentencing court, and
Page 105
Clause 199 Crimes (Administration of Sentences) Bill 1999
Part 9 The Serious Offenders Review Council
Division 1 Constitution and functions
(b) must give consideration to adopting or giving effect to any such
recommendations, observations and comments and to the
intention of the sentencing court when making them, and
(c) to the extent that it declines to adopt or give effect to any such
recommendations, observations and comments, must state its
reasons for doing so,
and must, in particular, have regard to the need to preserve the safety
of the community.
Division 2 Inquiries
200 Power to require attendance of witnesses and production of documents
(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 Review Council for the purpose of giving
evidence, or
(b) to produce to the Review Council 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 proceeding of the Review Council,
at a time, date and place specified in the instrument.
(2) A judicial member may require a person who appears before the
Review Council 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 Review Council at an inquiry, the
Review Council may take possession of the document for such period
as it considers necessary for the purposes of the proceedings before it.
(4) This section does not require a person to produce to the Review
Council at an inquiry any document the production of which the
Minister certifies in writing:
(a) may endanger an offender or any other person, or
(b) may otherwise be contrary to the public interest.
Page 106
Crimes (Administration of Sentences) Bill 1999 Clause 201
The Serious Offenders Review Council Part 9
Inquiries Division 2
201 Examination by judicial member
(1) A judicial member may require a person (including an officer or
employee of the Crown) who appears before the Review Council to
answer a question that is reasonably related to the proceedings before
the Review Council.
(2) A natural person is not excused from answering a question put by a
judicial member on the ground that the answer tends to incriminate the
person.
(3) If a person claims, before answering such a question, that the answer
tends to incriminate the person, neither the question nor the answer is
admissible in evidence against the person in criminal proceedings,
other than proceedings for an offence against section 202 (c) or on a
charge of perjury in respect of the answer.
202 Offences
A person must not:
(a) refuse, fail or neglect to comply with a requirement under
section 200 or 201, except to the extent to which the person is
lawfully excused from complying with the requirement, or
(b) produce any document, knowing it to be false or misleading in
a material particular, in purported compliance with a
requirement under section 200, or
(c) make an unsworn statement, knowing it to be false or
misleading in a material particular, when appearing before the
Review Council.
Maximum penalty: 5 penalty units.
203 Misconduct before Review Council
(1) A person must not, during a hearing before the Review Council:
(a) wilfully insult any member of the Review Council, or
(b) wilfully misbehave during the hearing, or
(c) wilfully and without lawful excuse interrupt the hearing, or
(d) wilfully and without lawful excuse disobey a direction of the
judicial member presiding at the hearing.
Maximum penalty: 10 penalty units.
Page 107
Clause 203 Crimes (Administration of Sentences) Bill 1999
Part 9 The Serious Offenders Review Council
Division 2 Inquiries
(2) The judicial member presiding at the hearing may direct a person who
does any such thing to leave the place where the hearing is being
conducted.
204 Rights of parties making submissions
At any hearing before the Review Council at which any person is
entitled under this Act to make submissions to the Review Council, the
person:
(a) may be represented by a legal practitioner or, with the consent
of the Review Council, by any other person, and
(b) may call and examine any witness who attends, including any
witness called by the Review Council, and
(c) may give evidence on oath, and
(d) may produce documents and exhibits to the Review Council,
and
(e) may otherwise adduce, orally or in writing, to the Review
Council such matters, and address the Review Council on such
matters, as are relevant to the proceedings before the Review
Council.
205 Witnesses' expenses
A person who is required to appear or give evidence before the Review
Council at an inquiry is entitled to be paid such allowances and
expenses (if any) as the Minister may determine in respect of the
person.
Division 3 Serious Offenders Management Committee
206 Establishment of Management Committee
(1) The Review Council may establish, and appoint the members of, a
Serious Offenders Management Committee (the Management
Committee) and, subject to this section, delegate to that Committee
such of its functions as the Review Council determines.
(2) The Management Committee is to be constituted by a Chairperson
(being one of the official members of the Review Council) and such
number of officers of the Department as may be determined by the
Review Council.
Page 108
Crimes (Administration of Sentences) Bill 1999 Clause 206
The Serious Offenders Review Council Part 9
Serious Offenders Management Committee Division 3
(3) The Review Council is to determine the quorum for a meeting of the
Management Committee.
(4) The Chairperson of the Management Committee is to determine the
procedure for the calling of meetings of the Management Committee
and for the conduct of business at those meetings.
207 Establishment of Management Committee subcommittees
(1) The Chairperson of the Management Committee may establish
subcommittees of the Management Committee for the purpose of
assisting it in the exercise of its functions.
(2) The procedure for the calling of meetings of a subcommittee and for
the conduct of business at those meetings is to be determined by the
Chairperson of the Management Committee or (subject to any
determination of the Chairperson) by the subcommittee.
208 Delegation to Management Committee of Review Council functions
(1) The functions of the Review Council that may be delegated to the
Management Committee include (but are not limited to) the following:
(a) the functions relating to the security classification and
management of serious offenders,
(b) the functions relating to the review of developmental programs
provided for such offenders.
(2) The Review Council may not delegate to the Management Committee
its functions relating to:
(a) the submission of reports to the Supreme Court with respect to
applications under Schedule 1 to the Crimes (Sentencing
Procedure) Act 1999, or
(b) the submission of reports to, or representation before, the Parole
Board.
Division 4 Miscellaneous
209 Annual reports
As soon as practicable after 31 December in each year, the Review
Council must furnish to the Minister for presentation to Parliament a
report giving information as to the Review Council's activities during
that year.
Page 109
Clause 210 Crimes (Administration of Sentences) Bill 1999
Part 10 The Inspector-General
Division 1 Appointment of Inspector-General and staff
Part 10 The Inspector-General
Division 1 Appointment of Inspector-General and staff
210 Inspector-General
(1) The Governor may appoint an Inspector-General of Corrective
Services.
(2) The following persons are not eligible to be appointed as
Inspector-General:
(a) a person who is or has within the previous 3 years been
employed as an officer or temporary employee of the
Department,
(b) a person who is to any extent responsible for the management
of, or who is employed at or in connection with, a correctional
centre or periodic detention centre,
(c) a person who has, or who has at any time had, any interest in a
management agreement.
(3) Schedule 3 has effect with respect to the Inspector-General.
211 Staff
(1) Such staff as may be necessary to assist the Inspector-General may be
employed under Part 2 of the Public Sector Management Act 1988.
(2) The Inspector-General may engage consultants for the purposes of
giving expert advice.
(3) The Inspector-General may arrange for the use of the services of any
staff (by secondment or otherwise) or facilities of the Department, any
other government department or a public or local authority.
(4) For the purposes of this Act, a person who is a member of staff
referred to in subsection (1) or whose services are made use of under
this section is taken to be an officer of the Inspector-General.
Page 110
Crimes (Administration of Sentences) Bill 1999 Clause 212
The Inspector-General Part 10
Functions of Inspector-General Division 2
Division 2 Functions of Inspector-General
212 Definitions
In this Division:
Department includes a correctional centre or periodic detention centre.
officer of the Department includes a correctional officer or a person
employed for the purposes of a management agreement.
213 Principal functions of Inspector-General
(1) The principal functions of the Inspector-General are (subject to this
Part):
(a) to investigate the Department's operations and the conduct of
the Department's officers, and
(b) to investigate and attempt to resolve complaints made by any
person relating to matters within the Department's
administration, and
(c) to encourage the mediation and informal resolution of
complaints relating to matters within the Department's
administration, and
(d) to train Official Visitors, and
(e) to examine reports of Official Visitors referred to the
Inspector-General by the Minister and to investigate or
comment on those reports, and
(f) to examine reports received from monitors appointed under
section 242 and to investigate or comment on those reports, and
(g) to examine reports received from community advisory councils
appointed under section 243 and make recommendations to the
Minister in relation to those reports, and
(h) to investigate any matter within the administration of the
Department if directed to do so by the Minister, and
(i) to promote integrity and professionalism among the
Department's officers, and
(j) to assess the effectiveness and appropriateness of the
procedures of the Department, and
Page 111
Clause 213 Crimes (Administration of Sentences) Bill 1999
Part 10 The Inspector-General
Division 2 Functions of Inspector-General
(k) to provide independent monitoring and auditing of contracts
entered into between the Department and private contractors,
and
(l) to oversee contracts for community-based post-release services,
and
(m) to make recommendations to the Minister on ways in which the
procedures of the Department can be improved, and
(n) to facilitate coronial inquiries into deaths in correctional centres.
(2) The functions of the Inspector-General relating to the investigation of
complaints may be exercised:
(a) on the Inspector-General's own initiative, or
(b) at the request of the Minister, or
(c) in response to a complaint made to the Inspector-General, or
(d) in response to a reference by the Ombudsman, the Independent
Commission Against Corruption or any other agency.
(3) The Inspector-General has such other functions as are conferred or
imposed on the Inspector-General by or under this or any other Act or
law.
(4) The Inspector-General may delegate to any officer of the
Inspector-General the exercise of any of the Inspector-General's
functions, other than this power of delegation.
214 Limitations on Inspector-General's functions
(1) The Inspector-General's functions are not exercisable in relation to the
following matters:
(a) any matter that is the subject of a special inquiry referred to in
section 230,
(b) any complaint about the conduct of a public authority that is
listed in Schedule 1 to the Ombudsman Act 1974 as being
excluded from the operation of that Act,
(c) any complaint about a decision, procedure or member of the
Parole Board or the Review Council.
(2) Subsection (1) (b) does not affect the power of the Inspector-General
to recommend the taking of disciplinary action or criminal proceedings
against any of the Department's officers.
Page 112
Crimes (Administration of Sentences) Bill 1999 Clause 214
The Inspector-General Part 10
Functions of Inspector-General Division 2
(3) If the Inspector-General receives a complaint that falls within the
charter of any of the Department's investigation units, the
Inspector-General:
(a) must refer the complaint to the investigation unit, unless
directed to deal with the complaint by the Minister, and
(b) if so directed, must notify the Commissioner of that fact.
(4) Nothing in subsection (3) prevents the Inspector-General from:
(a) monitoring the way in which a complaint is dealt with by an
investigation unit within the Department, or
(b) recommending that the Minister direct investigation of a
complaint by the Inspector-General or another investigative
body, or
(c) requiring a copy of any report prepared by an investigation unit
in relation to a complaint referred to it by the Inspector-General
and making recommendations in relation to the report.
215 Powers of Inspector-General
(1) For the purpose of exercising the Inspector-General's functions, the
Inspector-General:
(a) may at any time visit and examine any of the Department's
premises, and
(b) may require any of the Department's officers to supply
information or produce documents or other things about any
matter, or any class or kind of matters, relating to the
Department's operations or the conduct of the Department's
officers, and
(c) may require any of the Department's officers to attend before
the Inspector-General to answer questions or produce
documents or other things about any matter relating to the
Department's operations or the conduct of the Department's
officers, and
(d) may refer any matter relating to the Department's operations or
the conduct of the Department's officers to any of the
Department's investigation units or to any other appropriate
agency for consideration or action, and
(e) may recommend the taking of disciplinary action or criminal
proceedings against any of the Department's officers, and
Page 113
Clause 215 Crimes (Administration of Sentences) Bill 1999
Part 10 The Inspector-General
Division 2 Functions of Inspector-General
(f) may undertake systematic inspections of correctional centres
and periodic detention centres.
(2) For the purpose of exercising the Inspector-General's functions, the
Inspector-General:
(a) is entitled to be given full access to all of the Department's
records and to take or have copies made of any of them, and
(b) is entitled to be given full access to all offenders held in
custody by officers of the Department and to question those
offenders and obtain information from them.
(3) The Inspector-General has power to do all things necessary to be done
for or in connection with, or reasonably incidental to, the exercise of
the Inspector-General's functions.
(4) Any specific powers conferred on the Inspector-General by this Act are
not taken to limit by implication the generality of this section.
216 Discretion of Inspector-General to investigate complaints
(1) The Inspector-General may, at any time and for any reason, decide not
to investigate a complaint or to discontinue the investigation of a
complaint.
(2) Without limiting the generality of subsection (1), the Inspector-General
may decide not to investigate a complaint or to discontinue the
investigation of a complaint if the Inspector-General considers:
(a) that the complaint is frivolous, vexatious or not in good faith,
or
(b) that the subject-matter of the complaint is trivial, or
(c) that the conduct complained of occurred at too remote a time to
justify investigation, or
(d) that an alternative and satisfactory means of redress is or has
been available to the complainant, or
(e) that the complainant has no interest or an insufficient interest in
the conduct complained of.
(3) This section does not apply to any matter that is referred to the
Inspector-General for investigation or other action under Part 5 of the
Independent Commission Against Corruption Act 1988.
Page 114
Crimes (Administration of Sentences) Bill 1999 Clause 217
The Inspector-General Part 10
Relationship of Inspector-General with other agencies Division 3
Division 3 Relationship of Inspector-General with other
agencies
217 Relationship with Ombudsman regarding investigations
(1) The Inspector-General must not investigate a matter that could become
the subject of a complaint under the Ombudsman Act 1974 unless the
Inspector-General has entered into arrangements with the Ombudsman
under this section.
(2) The Inspector-General and the Ombudsman may enter into
arrangements regarding:
(a) matters the subject of a complaint, inquiry, investigation or
other action under the Ombudsman Act 1974 about which the
Ombudsman will notify the Inspector-General, and
(b) matters about which the Inspector-General will notify the
Ombudsman that could be made the subject of such a
complaint, inquiry, investigation or other action, and
(c) the handling of such complaints, inquiries, investigations or
other matters by the Inspector-General that could be dealt with
by the Ombudsman under that Act.
(3) The Inspector-General and the Ombudsman are empowered and
required to exercise their functions in conformity with any relevant
arrangements entered into under this section.
218 Relationship with ICAC regarding investigations
(1) The Inspector-General has the same duty to report to the Independent
Commission Against Corruption (the Commission) any matter that the
Inspector-General suspects on reasonable grounds concerns or may
concern corrupt conduct within the meaning of the Independent
Commission Against Corruption Act 1988 as the principal officer of
a public authority has under section 11 of that Act.
(2) The Inspector-General must not exercise functions in relation to any
such matter unless authorised to do so by arrangements entered into
under this section.
Page 115
Clause 218 Crimes (Administration of Sentences) Bill 1999
Part 10 The Inspector-General
Division 3 Relationship of Inspector-General with other agencies
(3) The Inspector-General and the Commission may enter into
arrangements regarding:
(a) matters about which the Commission will notify the
Inspector-General where the Commission suspects that an
officer of the Department is or may be guilty of misconduct,
and
(b) the handling of matters by the Inspector-General that may
involve misconduct of an officer of the Department and that
could be dealt with by the Commission under the Independent
Commission Against Corruption Act 1988.
(4) The Inspector-General and the Commission are empowered and
required to exercise their functions in conformity with any relevant
arrangements entered into under this section.
219 Functions of Inspector-General under Protected Disclosures Act 1994
A reference in the Protected Disclosures Act 1994 to the principal
officer of a public authority includes, where the public authority
concerned is the Department, a reference to the Inspector-General.
Division 4 Miscellaneous
220 Reports of Inspector-General
(1) The Inspector-General must make an annual report in writing to the
Minister on the operations of the Inspector-General and must make
such other reports to the Minister as the Minister requires.
(2) The annual report of the Inspector-General is to be included in the next
annual report of the Department prepared for the purposes of the
Annual Reports (Departments) Act 1985.
221 Obstruction of Inspector-General
A person must not:
(a) without reasonable excuse, wilfully obstruct, hinder, resist or
threaten the Inspector-General, or any officer of the
Inspector-General, in the exercise of the Inspector-General's
functions under this Act, or
Page 116
Crimes (Administration of Sentences) Bill 1999 Clause 221
The Inspector-General Part 10
Miscellaneous Division 4
(b) without reasonable excuse, refuse or wilfully fail to comply
with any lawful requirement of the Inspector-General or an
officer of the Inspector-General, or
(c) wilfully make any statement that is false or misleading in a
material particular to the Inspector-General, or any officer of
the Inspector-General, in the exercise of the Inspector-General's
functions under this Act.
Maximum penalty: 50 penalty units or imprisonment for 12 months,
or both.
222 Review of Part
(1) The Minister is to review this Part to evaluate the Inspector-General's
contribution to the operation of the State's correctional system.
(2) The review is to be undertaken as soon as possible after 12 June 2002.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament before 12 June 2003.
223 Expiration of position of Inspector-General
(1) A person must not be appointed to the position of Inspector-General
after 1 October 2003.
(2) A person who holds the office of Inspector-General immediately
before 1 October 2003 ceases to hold office on that day.
(3) Subsections (1) and (2) do not have effect if before 1 October 2003 an
Act of Parliament, or a resolution of both Houses of Parliament,
provides that those subsections do not have effect.
Page 117
Clause 224 Crimes (Administration of Sentences) Bill 1999
Part 11 Administration
Division 1 Correctional complexes, correctional centres and periodic detention centres
Part 11 Administration
Division 1 Correctional complexes, correctional centres and
periodic detention centres
224 Correctional complexes
(1) The Governor may, by proclamation, declare any premises specified
or described in the proclamation to be a correctional complex for the
purposes of this Act.
(2) The Governor may, by the proclamation by which any premises are
declared to be a correctional complex or by a subsequent proclamation,
give a name to the correctional complex.
(3) The Governor may, by proclamation, vary or revoke any proclamation
under this section.
225 Correctional centres
(1) The Governor may, by proclamation, declare any premises specified
or described in the proclamation to be a correctional centre for the
purposes of this Act.
(2) The Governor may, by the proclamation by which any premises are
declared to be a correctional complex or by a subsequent proclamation,
declare any part of the correctional complex to be a correctional centre
for the purposes of this Act.
(3) The Governor may, by the proclamation by which any premises or any
part of a correctional complex is declared to be a correctional centre or
by a subsequent proclamation, give a name to the correctional centre.
(4) The Governor may, by proclamation, vary or revoke any proclamation
under this section.
226 Periodic detention centres
(1) The Governor may, by the proclamation by which any premises are
declared to be a correctional centre or by a subsequent proclamation,
declare the correctional centre to be a periodic detention centre for the
purposes of this Act.
Page 118
Crimes (Administration of Sentences) Bill 1999 Clause 226
Administration Part 11
Correctional complexes, correctional centres and periodic detention centres Division 1
(2) The Governor may, by the proclamation by which any correctional
centre is declared to be a periodic detention centre or by a subsequent
proclamation, give a name to the periodic detention centre.
(3) A proclamation by which a correctional centre is declared to be a
periodic detention centre must identify some other correctional centre
(not being a periodic detention centre) whose governor is to be
responsible for the periodic detention centre.
(4) The Governor may, by proclamation, vary or revoke any proclamation
under this section.
Division 2 Supervision of correctional centres
227 Visiting Justices
(1) For each correctional complex, correctional centre and periodic
detention centre there is to be a Visiting Justice, being a Magistrate
appointed by the Chief Magistrate.
(2) A Visiting Justice has the functions conferred or imposed on a Visiting
Justice by or under this or any other Act or law.
(3) A Visiting Justice may at any time visit the correctional complex,
correctional centre or periodic detention centre for which he or she is
appointed.
228 Official Visitors
(1) For each correctional complex, correctional centre and periodic
detention centre there is to be at least one Official Visitor appointed by
the Minister.
(2) Notice of any such appointment must be published in the Gazette.
(3) The following persons are not eligible to be Official Visitors:
(a) any person who is employed as an officer or temporary
employee in the Department,
(b) any person who is to any extent responsible for the
management of, or who is employed at or in connection with,
a correctional centre or periodic detention centre,
(c) any person who has an interest in a management agreement,
(d) any person who has not made a declaration under clause 4 of
Schedule 4.
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Division 2 Supervision of correctional centres
(4) An Official Visitor for a correctional complex, correctional centre or
periodic detention centre:
(a) unless prevented by illness or other sufficient cause, must visit
the complex or centre at least once each month:
(i) for the purpose of giving interviews to correctional
officers and offenders, and
(ii) for the purpose of examining the complex or centre, and
(b) may visit the complex or centre at any other time unless, in the
opinion of the governor, a visit would be undesirable for
reasons of security, and
(c) must, in accordance with the regulations, receive and deal with
complaints, and
(d) must, in accordance with the regulations, report at least once
every 6 months to the Minister, and
(e) has and may exercise such other functions as may be prescribed
by the regulations.
(5) The Minister may refer a report received under this section to the
Inspector-General for investigation or comment.
(6) Schedule 4 has effect with respect to Official Visitors.
229 Powers of Judges and Magistrates to visit and examine
Any Judge of the Supreme Court or District Court, and any Magistrate,
may at any time visit and examine any correctional complex,
correctional centre or periodic detention centre.
230 Special inquiries
(1) The Minister may direct that an inquiry be conducted into any matter
relating to the security, good order, control or management of a
correctional complex, correctional centre or periodic detention centre.
(2) The inquiry is to be conducted by the Visiting Justice for the
correctional complex, correctional centre or periodic detention centre
or by such other person as the Minister may appoint.
(3) For the purpose of conducting such an inquiry:
(a) the person appointed to conduct the inquiry has and may
exercise the powers, authorities, protections and immunities
conferred on a commissioner by Division 1 of Part 2 of the
Royal Commissions Act 1923, and
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(b) the provisions of that Act (except for section 13 and Division
2 of Part 2) apply, with any necessary adaptations:
(i) to and in respect of the inquiry, and
(ii) to or in respect of any witness or person summoned by
or appearing before the person so appointed.
(4) It is a reasonable excuse for the purposes of section 11 (2) (a) of the
Royal Commissions Act 1923, as applied by subsection (3) of this
section, for a natural person:
(a) to refuse or fail to answer a question put to the person at an
inquiry, or
(b) to refuse or fail to produce a document or other thing that the
person is required to produce at an inquiry,
that the answer to the question, or the production of the document or
other thing, tends to incriminate the person.
(5) The person appointed to conduct the inquiry:
(a) is not bound by the rules of evidence, but may inform himself
or herself on any matter in such manner as the person thinks
appropriate, and
(b) may, in respect of a matter not dealt with by or under this Act,
give directions as to the procedure to be followed at or in
connection with the inquiry.
Division 3 Staff
231 Staff generally
The following staff are to be appointed or employed under the Public
Sector Management Act 1988:
(a) the Commissioner,
(b) governors of correctional centres,
(c) correctional officers,
(d) probation and parole officers,
(e) the Secretary and staff of the Parole Board,
(f) the Executive Officer and Registrar and staff of the Review
Council,
(g) such other staff as are necessary for the purposes of this Act.
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232 Commissioner
(1) The Commissioner:
(a) has the care, direction, control and management of all
correctional complexes, correctional centres and periodic
detention centres, and
(b) has all other functions conferred or imposed on the
Commissioner by or under this or any other Act or law.
(2) In the exercise of the functions referred to in subsection (1) (a) and (b),
the Commissioner is subject to the direction and control of the
Minister.
(3) The Commissioner may delegate to any person any of the
Commissioner's functions, other than this power of delegation.
233 Governors of correctional centres
(1) The governor of a correctional centre:
(a) has the care, direction, control and management of the
correctional centre and of any periodic detention centre for
which the governor is responsible as referred to in section 226
(3), and
(b) has all other functions conferred or imposed on the governor by
or under this or any other Act or law.
(2) In the exercise of the functions referred to in subsection (1) (a) and (b),
the governor is subject to the direction and control of the
Commissioner.
(3) The governor of a correctional centre may delegate to any person any
of the governor's functions, other than this power of delegation and
other than any function delegated to the governor by the
Commissioner.
234 Commissioned and non-commissioned correctional officers
(1) There are two classifications of correctional officers, as follows:
(a) commissioned correctional officers (being correctional officers
of or above the rank of Assistant Superintendent),
(b) non-commissioned correctional officers (being correctional
officers below the rank of Assistant Superintendent).
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(2) The Governor may issue commissions to commissioned correctional
officers.
(3) A commission is taken to have been resigned by a commissioned
officer on his or her dismissal, resignation or termination of service.
(4) A correctional officer of or above the rank of Assistant Superintendent,
whether or not the officer has been issued with a commission, is taken
to have been commissioned as an officer of the relevant rank as from
the date of the officer's appointment to that rank.
(5) The regulations may make provision for or with respect to the ranking
of correctional officers and the awarding of medals to correctional
officers and other members of staff of the Department.
235 Functions of correctional officers
(1) The functions of the various ranks and classes of correctional officers
are to be as determined from time to time by the Commissioner.
(2) Commissioned correctional officers must at all times exercise their
functions in connection with the administration and management of
correctional complexes, correctional centres and periodic detention
centres in such manner as the Commissioner, having regard to current
circumstances, may from time to time direct.
236 Oath to be taken by correctional officers
(1) Before a person exercises any of the functions of a correctional officer,
the person must take the oath or make the affirmation of office as a
correctional officer in accordance with the regulations.
(2) A correctional officer is not required to take a further oath or make a
further affirmation merely because of a change in the officer's rank or
position.
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237 Purpose for which contractors may be engaged
(1) To assist the Commissioner in the exercise of the Commissioner's
functions with respect to the management of correctional centres and
the transfer of offenders between correctional centres, the
Commissioner may make use of the services of one or more
contractors.
(2) The engagement of a contractor for the management of a correctional
centre, and its management by the contractor, may not be undertaken
otherwise than in accordance with this Part.
238 Management agreements
(1) The Commissioner may enter into an agreement (the management
agreement) with a corporation (the management company) providing
for the management of one or more correctional centres.
(2) The management agreement must provide for:
(a) compliance by the management company with the provisions
of this Act and the regulations, and of any other Act or law, so
far as they affect the correctional centre and the welfare of its
inmates, and
(b) objectives and performance standards for the management
company in relation to the management of the correctional
centre, and
(c) employment by the management company of a person
competent to exercise the functions of the governor of the
correctional centre and of sufficient and competent custodial
and paramedical and other staff to enable it to discharge its
obligations under the agreement, and
(d) remuneration of the management company, and
(e) submission to the Commissioner of periodic reports and audited
accounts in relation to the management of the correctional
centre, and
(f) prohibition of subcontracting by the management company,
otherwise than as allowed by a submanagement agreement or
as approved by the Commissioner, and
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(g) indemnity by the management company of the Crown and the
Commissioner for damage to the correctional centre and any
associated public property in the possession or under the
control of the management company, and
(h) notification of any variation of the controlling interests in the
management company or of its management structure, and
(i) such other matters as may be prescribed by the regulations.
(3) The management agreement may make such other provision, not
inconsistent with this Act or the regulations, as may be agreed for or
with respect to the management of the correctional centre by the
management company.
(4) For the purposes of subsection (3), a provision of a management
agreement is not inconsistent with this Act or the regulations in so far
as it prescribes a standard that exceeds the standard provided by this
Act or the regulations in relation to the health, diet or exercise of
offenders or any other matter affecting their welfare.
239 Submanagement agreements
(1) The management company may, with the approval of the
Commissioner, enter into an agreement (the submanagement
agreement) with respect to the management of the correctional centre
on its behalf and in accordance with the management agreement by
another corporation (the submanagement company).
(2) The submanagement agreement may make such other provision, not
inconsistent with this Act or the regulations, as may be agreed for or
with respect to the management of the correctional centre by the
submanagement company.
(3) For the purposes of subsection (2), a provision of a submanagement
agreement is not inconsistent with this Act or the regulations in so far
as it prescribes a standard that exceeds the standard provided by this
Act or the regulations in relation to the health, diet or exercise of
offenders or any other matter affecting their welfare.
240 Authorisation of correctional centre staff
(1) A person must not be or continue to be employed, at a managed
correctional centre, to perform any of the duties of:
(a) the governor of the correctional centre, or
(b) a custodian of offenders, or
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(c) employment in any other capacity prescribed by the regulations,
unless the person is the holder of an authority, issued by the
Commissioner, authorising the person to perform the duties concerned.
(2) The Commissioner may refuse to issue an authority under this section
to a person:
(a) if the person has not undertaken an accredited course of training
or instruction relevant to the employment concerned, or
(b) if, because of a criminal record, insufficient education, aspects
of character or other matters, the Commissioner does not
consider the person to be a fit and proper person to be so
employed, or
(c) for any other reason which the Commissioner thinks is a
sufficient reason, in the public interest, for refusal.
(3) An authority issued under this section to a person may be revoked by
the Commissioner:
(a) if, in the opinion of the Commissioner, having regard to the
provisions of subsection (2), the authority ought not to have
been issued, or
(b) if the person has failed to comply with any of the provisions of
this Act or the regulations or with any direction given to the
person under this Act, or
(c) for any other reason which the Commissioner thinks is a
sufficient reason, in the public interest, for revocation of the
authority,
but no such authority is to be revoked without affording the person
concerned a reasonable opportunity to be heard.
(4) The Commissioner may from time to time accredit courses of training
or instruction for the purposes of this Part.
241 Status of staff at correctional centre managed under agreement
(1) A person who, in accordance with this Part and a management or
submanagement agreement, is appointed by the management company
or submanagement company under the agreement to exercise the
functions of the governor of a correctional centre is, for the purposes
of this Act and for all other purposes, the governor of the correctional
centre.
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(2) A person employed for the purposes of a management or
submanagement agreement is, in the performance of the duties of his
or her employment, subject to:
(a) the provisions of the regulations, and
(b) any directions, not inconsistent with the regulations, given by
the Commissioner either generally or in a particular case.
(3) Despite any power or authority conferred by a management or
submanagement agreement, or by the regulations, on any person
employed by the management company or submanagement company
in connection with a correctional centre, a person so employed is not,
for the purposes of this Act, a correctional officer, nor does the Public
Sector Management Act 1988 apply to any such person on account of
that employment.
242 Monitoring
(1) A person (in this section referred to as the monitor) is to be appointed
under the Public Sector Management Act 1988 for the purposes of this
section in respect of each managed correctional centre.
(2) The monitor is to be appointed for a term of not more than 2 years, but
is eligible for re-appointment.
(3) The monitor is responsible to the Commissioner for the assessment
and review of the management of the correctional centre concerned by
the management company or submanagement company concerned.
(4) A monitor must make an annual report in writing to the Commissioner
of his or her findings regarding:
(a) the management of a correctional centre, and
(b) any activity undertaken in accordance with a management or
submanagement agreement that affects the correctional centre,
including any transportation of offenders to or from the correctional
centre.
(5) When making a report to the Commissioner under subsection (4), a
monitor must give a copy of the report to the Inspector-General.
(6) The report is to form part of the next annual report of the Department
prepared for the purposes of the Annual Reports (Departments) Act
1985.
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(7) The monitor has such other functions as may be specified in the
regulations and such additional functions as may be specified by the
Commissioner from time to time.
(8) The monitor is to have free and unfettered access at all times to all
parts of the correctional centre, to all correctional centre records, to all
offenders held in custody in the correctional centre and to all persons
employed at the correctional centre.
243 Community advisory councils
(1) To assist in the monitoring of a managed correctional centre, and to
encourage community involvement in the oversight of its management,
the Minister is to appoint a community advisory council for the
correctional centre.
(2) A community advisory council is to consist of persons the Minister
considers to be suitably qualified to serve on the committee and to be
suitably representative of the interests of the local community.
(3) The community advisory council is to make quarterly reports in writing
to the Minister of its findings regarding the management of the
correctional centre.
(4) When making a report to the Minister under subsection (3), the
community advisory council must give a copy of the report to the
Inspector-General.
244 Corrections Health Service
(1) For the purpose of ensuring that the provisions of this Act and the
regulations (in so far as they relate to medical, surgical or dental
treatment or to the health of offenders) are being complied with at a
managed correctional centre, the Chief Executive Officer, Corrections
Health Service, is to have free and unfettered access at all times to all
parts of the correctional centre, to all medical records held at the
correctional centre and to all offenders held in custody in the
correctional centre.
(2) Nothing in this section:
(a) affects any power conferred on the Chief Executive Officer,
Corrections Health Service, with respect to any correctional
centre, or
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(b) affects any duty of a management company, submanagement
company or correctional centre medical officer under this Act,
the regulations or any agreement.
(3) In this section:
Chief Executive Officer, Corrections Health Service means the
person for the time being holding office or acting as the Chief
Executive Officer of the Corrections Health Service.
Corrections Health Service means the Corrections Health Service
specified in Schedule 2 to the Health Services Act 1997 and
constituted as a statutory health corporation by that Act.
245 Investigation of corruption
While a correctional centre is being managed under a management or
submanagement agreement, the Independent Commission Against
Corruption Act 1988 and the regulations under that Act, with any
necessary modifications:
(a) apply to and in respect of the management company or
submanagement company as if (in so far as it has functions
under this Act or the agreement) it were a public authority
within the meaning of that Act, and
(b) apply to and in respect of every director or other officer of the
management company or submanagement company (and any
employee of the management company or submanagement
company who under this Part requires an authority from the
Commissioner in order to be such an employee) as if:
(i) the director, officer or employee were, by virtue of his
or her office or employment, a public official within the
meaning of that Act, and
(ii) any functions exercisable in the course of his or her
office or employment were public official functions.
246 Administrative complaints
While a correctional centre is being managed under a management or
submanagement agreement, the Ombudsman Act 1974 and the
regulations under that Act, with any necessary modifications:
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(a) apply to and in respect of the management company or
submanagement company and the governor of the correctional
centre as if (in so far as they have functions under this Act or
the agreement) they were public authorities within the meaning
of that Act, and
(b) apply to and in respect of:
(i) any director or other officer of the management
company or submanagement company, and
(ii) any employee of the management company or
submanagement company who under this Part requires
an authority from the Commissioner in order to be such
an employee,
as if he or she were, by virtue of his or her office or
employment, a statutory employee within the meaning of that
Act.
247 Freedom of information
While a correctional centre is being managed under a management or
submanagement agreement, the Freedom of Information Act 1989 and
the regulations under that Act apply, with any necessary modifications,
to and in respect of the management company or submanagement
company and its members and employees:
(a) as if the management company or submanagement company (in
so far as it has functions under this Act or the agreement) were
a local authority within the meaning of that Act, and
(b) as if the managing director of the management company or
submanagement company were its principal officer within the
meaning of that Act, and
(c) as if the Minister were its responsible Minister within the
meaning of that Act.
248 Minimum standards
(1) The Commissioner must cause to be prepared a written statement
setting out minimum standards in relation to the exercise of any
functions by a management company or submanagement company in
accordance with this Part.
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(2) The Minister must cause the statement to be laid before each House of
Parliament within 10 sitting days of that House after the execution of
a management or submanagement agreement providing for the exercise
of those functions by a management company or submanagement
company.
(3) The Commissioner may amend such a statement from time to time.
(4) The Minister must cause the amended statement to be laid before each
House of Parliament within 10 sitting days of that House after the
statement is amended.
(5) Nothing in this section requires a statement (including an amended
statement) to be laid before a House of Parliament if such a statement
in substantially the same terms has already been laid before that House.
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Part 13 Custody of persons during proceedings
249 Definitions
In this Part:
correctional officer means:
(a) a correctional officer engaged in court security or escort duties,
or
(b) a person employed on a temporary basis within the Department
to perform court security or escort duties, or
(c) a person holding an authority under section 240 to perform
escort duties.
designated officer means a person designated by the Commissioner for
the purposes of this Part, whether generally or in relation to a particular
case.
person in custody means a person who is in lawful custody:
(a) before being brought before a court in connection with the
alleged commission of an offence, or
(b) during proceedings to determine whether the person has
committed an offence or while such proceedings are pending,
or
(c) following a grant of bail but before the person has fulfilled the
necessary requirements entitling the person to be released, or
(d) during any period for which the person is on remand, or
(e) while awaiting sentencing for an offence or during sentencing
proceedings, or
(f) during any period after the person is sentenced for an offence,
or
(g) during any period after a periodic detention order is made in
relation to the person and before a periodic detention notice is
served on the person, or
(h) in accordance with a warrant of commitment or other warrant,
or an order of a court or other competent authority,
but does not include a person who is detained in accordance with the
Intoxicated Persons Act 1979.
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250 Transport and detention of persons in custody
(1) A person in custody may be given into the keeping of a correctional
officer.
(2) A correctional officer into whose keeping a person in custody has been
given:
(a) may convey the person to any correctional centre or other
place, and
(b) may detain the person in any correctional centre or other place.
(3) A warrant of commitment or other warrant, or an order of a court or
other competent authority, authorising the conveyance of a person in
custody to, or the detention of a person in custody in, a correctional
centre authorises a correctional officer to convey the person to the
correctional centre referred to in the warrant or order.
251 Designated officer
(1) While a person in custody is in the keeping of a correctional officer
under this Part, the person is taken to be in the custody of the
designated officer.
(2) Subject to the regulations:
(a) the designated officer has, in relation to a person taken to be in
the officer's custody by virtue of this section, all the powers and
duties that the governor of a correctional centre has in relation
to an inmate of a correctional centre, and
(b) a person taken to be in the designated officer's custody by
virtue of this section has all the rights of such an inmate.
(3) Subsection (2) (b) does not affect any other right that a person in
custody may have apart from that paragraph.
(4) The regulations:
(a) may limit the powers and duties of the designated officer in
relation to persons taken to be in the custody of the designated
officer by virtue of this section, and
(b) may limit the rights that a person in custody has under
subsection (2) (b).
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252 Places where persons in custody may be kept during transfer
While being transferred from one place to another, a person in custody
may be accommodated in a correctional centre, police station or court
cell complex if it is necessary or convenient to do so.
253 Part subject to Children (Detention Centres) Act 1987
This Part is subject to the Children (Detention Centres) Act 1987.
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254 Extension of sentence following unlawful absence from custody
(1) If a person is unlawfully absent from custody during the term of a
sentence:
(a) the term of the sentence, and
(b) if the absence occurs during a non-parole period of the
sentence, the non-parole period of the sentence,
are, by this subsection, extended by the period for which the person is
unlawfully absent from custody.
(2) In subsection (1):
(a) the reference to a person being unlawfully absent from custody
includes a reference to a person being absent from custody
following the revocation of a periodic detention order, home
detention order or parole order, and
(b) the reference to the period for which such a person is
unlawfully absent from custody does not include any period for
which the person is in custody, whether or not in relation to the
sentence the subject of the order that has been revoked.
(3) This section does not apply to:
(a) any absence from custody for which the person is taken to have
been in lawful custody by operation of section 40, or
(b) any absence from custody in respect of which the person's
sentence is extended by some other provision of this Act.
(4) This section does not prevent a person from being proceeded against
and convicted in relation to any offence arising out of an escape from
lawful custody.
255 Effect of extension of sentence
(1) This section applies to any sentence whose term or non-parole period
is extended under this Act.
(2) The date of commencement of any other sentence (the later sentence)
that is to be served consecutively with the extended sentence (the
earlier sentence), is, by this subsection, postponed:
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(a) if the later sentence commences at the end of the non-parole
period of the earlier sentence, by the period for which the non-
parole period of the earlier sentence is extended, or
(b) if the later sentence commences at the expiry of the earlier
sentence, by the period for which the term of the earlier
sentence is extended.
(3) The relevant warrant of commitment is sufficient authority for the
detention of the person concerned:
(a) in the case of a warrant committing the person to a correctional
centre, until the end of the extended term of the sentence, or
(b) in the case of a warrant committing the person to imprisonment
by way of periodic detention, for any detention period occurring
before the end of the extended term of the sentence.
256 Victims Register
(1) There is to be a Victims Register.
(2) There are to be recorded in the Victims Register the names of victims
of offenders who have requested that they be given notice of the
possible parole of the offender concerned.
(3) Subject to the regulations, the Victims Register is 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 Act 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 Act, including:
(i) the determination of the persons who are family
representatives of victims, and
(ii) the provision, by persons claiming to be victims, of
evidence of their identity and of the circumstances by
which they claim to be victims.
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(5) For the purposes of this section:
victim of an offender means:
(a) a victim of an offence for which the offender has been
sentenced or of any offence taken into account under Division
3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999, 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),
and includes a person who suffers actual physical bodily harm, mental
illness or nervous shock, or whose property is deliberately taken,
destroyed or damaged, as a direct result of an act committed, or
apparently committed, by the offender in the course of a criminal
offence.
257 Disclosure of information
A person must not disclose any information obtained in connection
with the administration or execution of this Act unless that disclosure
is made:
(a) with the consent of the person from whom the information was
obtained, or
(b) in connection with the administration or execution of this Act,
or
(c) for the purposes of any legal proceedings, or
(d) in accordance with a requirement of the Ombudsman Act 1974,
or
(e) with other lawful excuse.
Maximum penalty: 10 penalty units.
258 Supreme Court to review list of persons on remand who are in custody
(1) As soon as practicable after 15 February, 15 May, 15 August and 15
November in each year, the Commissioner must cause to be furnished
to the Supreme Court a list of all persons on remand who, as at that
date, have been in custody in a correctional centre for more than 3
months.
(2) The list must indicate, in relation to each person on remand, the court
to which the person is remanded to appear.
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(3) The Supreme Court is to conduct a review of the list, in open court, so
as:
(a) to ascertain whether there has been any undue delay in the
prosecution or conduct of proceedings against any person
whose name appears on the list, and
(b) if there has been any such delay, to take such action as the
Supreme Court considers appropriate to expedite those
proceedings.
(4) In this section, person on remand means any person the subject of a
warrant or order issued by a court by which the person is remanded in
custody in connection with proceedings for an offence committed or
alleged to have been committed by the person.
259 Service of notices
(1) Any notice required by or under this Act to be served on a person in
respect of whom a periodic detention order, home detention order,
parole order or community service order is in force may be served
personally or by posting it, addressed to the person, to the address
nominated by the person for that purpose.
(2) Such a notice may be served on a person in custody by service on the
person in whose custody the person is held, and is to be dealt with in
accordance with the regulations.
(3) The means of service authorised by this section are in addition to any
means that would, in the absence of this section, be sufficient for valid
service of the notice.
260 Evidentiary certificates
A certificate issued by the Commissioner or by a person prescribed by
the regulations, being a certificate that states that on a date or during
a period specified in the certificate:
(a) a specified person was in the custody of the governor of a
specified correctional centre or periodic detention centre, or
(b) a specified person was or was not the subject of a specified
periodic detention order, home detention order, community
service order or parole order, or
(c) a specified periodic detention order, home detention order,
community service order or parole order did or did not contain
specified terms, or
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(d) a specified person failed to comply with that person's
obligations under a specified periodic detention order, home
detention order, community service order or parole order,
is admissible in any legal proceedings and is evidence of the facts so
stated.
261 Address of warrant
(1) Any warrant, order or other instrument addressed to the governor of a
correctional centre describing the correctional centre by its situation or
other definite description is valid whatever the formal description of
the correctional centre.
(2) Any warrant, order or other instrument addressed to the governor
responsible for a periodic detention centre describing the periodic
detention centre by its situation or other definite description is valid
whatever the formal description of the periodic detention centre.
(3) A warrant addressed to the governor of a correctional centre may be
received by the governor of any other correctional centre or by the
person in charge of any police station or court cell complex.
(4) A warrant addressed to the person in charge of a police station may be
received by the person in charge of any other police station or by the
governor of a correctional centre.
(5) Nothing in this section authorises the detention of a person for the
whole or part of a sentence in one or more police stations for more
than one month at a time.
262 Effect of certain warrants
(1) A warrant issued by the Commissioner or the Parole Board under this
Act has the same effect as a warrant issued by a court.
(2) All courts and persons acting judicially must take judicial notice of a
warrant issued by the Commissioner or the Parole Board under this
Act.
263 Exclusion of personal liability
(1) An act or omission:
(a) by a body constituted by this Act, or
(b) by a person who is a member of such a body or a member of
staff of such a body, or
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(c) by a person on whom functions are conferred or imposed by or
under this Act, or
(d) by any person acting under the direction of a body or person
referred to in paragraph (a), (b) or (c),
does not subject a person referred to in paragraph (b), (c) or (d)
personally to any action, liability, claim or demand if the act or
omission was done or omitted to be done in good faith in the
administration or execution of this Act.
(2) In particular, such a person is not personally liable in respect of:
(a) anything properly and necessarily done by the person in the
course of carrying out a medical examination or medical test if
the person believed on reasonable grounds that the examination
or test was authorised or required to be carried out by this Act
or the regulations, or
(b) the disclosure, in accordance with the regulations, of
information obtained in the course of any such examination or
test.
264 Wearing or possession of correctional officer uniform by others
(1) A person (not being a correctional officer) who wears, or has in his or
her possession, a correctional officer uniform is guilty of an offence.
Maximum penalty: 10 penalty units or imprisonment for 6 months, or
both.
(2) A person is not guilty of an offence against this section if the person
establishes:
(a) that the person had the permission of the Commissioner to wear
or possess the uniform, or
(b) that the person wore or was in possession of the uniform for the
purposes of a public entertainment, or
(c) that the person had a reasonable excuse for wearing or being in
possession of the uniform.
(3) In this section, correctional officer uniform means the uniform of a
correctional officer, and includes:
(a) any parts of such a uniform (or any accoutrements of a
correctional officer) that are generally recognised as parts of the
uniform or accoutrements of a correctional officer, or
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(b) a reasonable imitation of such a uniform, parts of a uniform or
accoutrements.
265 Impersonating correctional officer
A person who impersonates a correctional officer is guilty of an
offence.
Maximum penalty: 10 penalty units or imprisonment for 6 months, or
both.
266 Proceedings for offences
Proceedings for offences against this Act or the regulations are to be
dealt with summarily before a Local Court constituted by a Magistrate
sitting alone.
267 Records and information available for research work
(1) The Commissioner may supply to any person undertaking research in
connection with:
(a) the administration of correctional centres, or
(b) the rehabilitation of offenders, or
(c) the circumstances relating to their convictions and terms of
imprisonment, or
(d) some other aspect of penology,
such records and information relating to those matters as the
Commissioner considers appropriate.
(2) A person to whom any such records or information is supplied must
not use them in a manner:
(a) that contravenes any conditions imposed by the Commissioner
as to their use, or
(b) that enables the identity of the persons to whom they relate to
be ascertained.
Maximum penalty: 2 penalty units.
(3) The Department may, either alone or in conjunction with a university
body or other person or organisation, undertake research of the kind
referred to in subsection (1).
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268 Funds payable to certain organisations
(1) The Minister may, out of money provided by Parliament or otherwise
legally available, make payments to such bodies or organisations
undertaking the provision of aid and assistance to offenders,
discharged offenders and relatives of offenders as the Minister may
approve.
(2) Any such payments are to be subject to such conditions as the Minister
may impose.
269 Sheriff's functions preserved
Nothing in this Act limits or affects the functions conferred or imposed
on the Sheriff by or under this or any other Act or law.
270 Prerogative of mercy preserved
Nothing in this Act limits or affects the prerogative of mercy.
271 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 for carrying out or
giving effect to this Act.
(2) A regulation may create an offence punishable by a penalty not
exceeding 20 penalty units.
272 Savings, transitional and other provisions
Schedule 5 has effect.
273 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
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Schedule 1 Parole Board
(Section 183)
Part 1 Constitution
1 Chairperson
(1) The judicial members of the Parole Board are to be appointed, in and
by the instruments by which they are appointed (or in and by other
instruments executed by the Governor) as:
(a) Chairperson of the Parole Board, and
(b) Alternate Chairperson of the Parole Board, and
(c) Deputy Chairperson of the Parole Board.
(2) Neither the appointment of a person who is a Judge as Chairperson,
Alternate Chairperson or Deputy Chairperson, nor the person's service
as Chairperson, Alternate Chairperson or Deputy Chairperson, affects:
(a) the person's tenure of the office of a Judge, or
(b) the person's rank, title, status, precedence, salary or other rights
or privileges as a holder of the office of a Judge.
(3) A person who is a Judge may exercise the powers of a Judge even
though the person is Chairperson, Alternate Chairperson or Deputy
Chairperson.
(4) Service of a Judge as Chairperson, Alternate Chairperson or Deputy
Chairperson is, for all purposes, taken to be service as a Judge.
2 Acting members
(1) During the illness or absence of the Chairperson, the Alternate
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.
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(2) During the illness or absence of the Alternate Chairperson, the Deputy
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) and is taken to be the
Alternate Chairperson.
(3) The Governor may, from time to time, appoint a judicially qualified
person 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 is taken to be the
Deputy Chairperson.
(4) If a community member is granted leave of absence by the Minister,
the Governor may appoint a person to act in the office of the member
during the member's absence, and that person, while so acting, has all
the functions of the member and is 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 is taken to be an absence from office of
the Chairperson, Alternate Chairperson or Deputy Chairperson,
and
(b) the Alternate Chairperson or Deputy Chairperson is taken to be
absent from the office of Alternate Chairperson or Deputy
Chairperson during any period of acting in another office under
subclause (1) or (2).
3 Deputies
(1) The Commissioner of Police may from time to time nominate a police
officer to be the deputy of the official member appointed by that
Commissioner, and may revoke such a nomination at any time.
(2) The Commissioner of Corrective Services may from time to time
nominate an officer of the Probation and Parole Service to be the
deputy of the official member appointed by that Commissioner, and
may revoke such a nomination at any time.
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(3) In the absence of an official 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
taken to be a member.
4 Term of office
Subject to this Schedule, an appointed member holds office for 3 years,
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 appointed member
(1) The office of an appointed member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) is removed from office by the Governor, or
(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, or
(f) becomes a mentally incapacitated person, or
(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, or
(h) being a judicial member, ceases to be a judicially qualified
person.
(2) The Governor may remove an appointed member from office at any
time.
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7 Revocation of appointment as official member
(1) The Commissioner of Police may at any time revoke the appointment
of a police officer made for the purposes of section 183 (2) (b).
(2) The Commissioner of Corrective Services may at any time revoke the
appointment of an officer of the Probation and Parole Service made for
the purposes of section 183 (2) (c).
(3) On revocation under this clause, the office, as a Parole Board member,
of the person affected is taken to be vacant.
8 Filling of vacancy in office of appointed member
If the office of an appointed member becomes vacant, a person is,
subject to this Act, to be appointed to fill the vacancy.
9 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.
Part 2 Procedure
10 Establishment of committees and appointment of other persons
(1) The Parole Board may establish committees, or appoint any person or
persons, to assist it in connection with the exercise of any of its
functions.
(2) If a committee is established:
(a) the members of that committee may be members of the Parole
Board, and
(b) the procedure for the calling of meetings of a committee and for
the conduct of business at those meetings is to be determined
by the chairperson of the committee (subject to any
determination of the Parole Board), and
(c) the Parole Board may delegate to that committee such of its
functions as may be prescribed by the regulations.
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11 General procedure
(1) Except as otherwise provided by this Act or the regulations:
(a) meetings of the Parole Board are to be held at such times and
places as are fixed by the Chairperson, and
(b) the procedure for the convening of meetings of the Parole
Board and for the conduct of business at those meetings is to be
as determined by the Chairperson.
(2) The Parole Board may from time to time adjourn its proceedings to
such times, dates and places and for such reasons as it thinks fit.
(3) The Parole Board is not bound by the rules of evidence, but may
inform itself of any matter in such manner as it thinks appropriate.
(4) Proceedings before the Parole Board:
(a) are to be open to the public, unless the Parole Board determines
in a particular case that the proceedings are to be conducted
wholly or partly in the absence of the public, and
(b) are not to be conducted in an adversarial manner, and
(c) are to be conducted with as little formality and technicality, and
with as much expedition, as fairness to any affected person and
the requirements of this Act permit.
(5) A decision of the Parole Board is not vitiated merely because of any
informality or want of form.
12 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 be
present, and to be heard, (but not vote) at a meeting of the Parole
Board at which a matter relating to a serious offender is being
considered.
13 Quorum
The quorum for a meeting of the Parole Board is 3 members consisting
of at least one judicial member and at least 2 non-judicial members.
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14 Attendance of community members
(1) For the purposes of any meeting of the Parole Board, not more than 4
community members may attend for the purposes of constituting the
Parole Board.
(2) If there are more than 4 community members present at a particular
meeting, the members who may attend the meeting are to be
determined in accordance with arrangements approved by the
Chairperson of the Parole Board.
15 Presiding members
(1) The Chairperson or a judicial member nominated by the Chairperson
is to preside at a meeting of the Parole Board.
(2) At a meeting of a Division, the judicial member of the Division is to
preside.
16 Voting
If the Chairperson and the Alternate Chairperson or Deputy
Chairperson, or both, are present at a meeting of the Parole Board, only
the Chairperson is entitled to vote with respect to any decision.
17 Decisions
(1) A decision supported by a majority of the votes cast at a meeting of the
Parole 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
Parole Board.
(2) In the case of an equality of votes, the judicial member presiding at a
meeting of the Parole Board is to have the casting vote.
(3) 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.
18 Record of proceedings
(1) The member presiding at a meeting of the Parole Board must cause a
record of the proceedings at the meeting to be made.
(2) Records made for the purposes of this clause may be destroyed after
the expiry of the period prescribed by the regulations.
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19 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 Parole Board on any offender
to whom a parole order relates and whose case is to come
before the Parole Board for consideration, and
(b) disposing of routine business of the Parole Board, other than
making determinations or decisions, or preparing reasons for
rejecting advice from the Review Council, under Part 6.
20 Authentication of documents
Any document requiring authentication by the Parole Board is
sufficiently authenticated if it is signed by:
(a) the member who presided at the meeting of the Parole Board
that dealt with the proceedings with respect to which the
document was prepared, or
(b) in the absence of that member, any other member who was
present at that meeting.
21 Evidentiary certificate
A certificate issued by the Secretary of the Parole Board, being a
certificate that records any determination or decision of the Parole
Board is admissible in any legal proceedings and is evidence of the
matters so recorded.
22 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 Parole Board, or
(b) any determination, decision or recommendation of the Parole
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 Parole
Board.
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23 Application of Part to Divisions of the Parole Board
This Part applies to a Division of the Parole Board in the same way as
it applies to the Parole Board, except to the extent to which this Part
otherwise provides.
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Schedule 2 Serious Offenders Review Council
(Section 195)
Part 1 Constitution
1 Chairperson
(1) The judicial members of the Review Council are to be appointed, in
and by the instruments by which they are appointed (or in and by other
instruments executed by the Governor) as:
(a) Chairperson of the Review Council, and
(b) Alternate Chairperson of the Review Council, and
(c) Deputy Chairperson of the Review Council.
(2) Neither the appointment of a person who is a Judge as Chairperson,
Alternate Chairperson or Deputy Chairperson, nor the person's service
as Chairperson, Alternate Chairperson or Deputy Chairperson, affects:
(a) the person's tenure of the office of a Judge, or
(b) the person's rank, title, status, precedence, salary or other rights
or privileges as a holder of the office of a Judge.
(3) A person who is a Judge may exercise the powers of a Judge even
though the person is Chairperson, Alternate Chairperson or Deputy
Chairperson.
(4) Service of a Judge as Chairperson, Alternate Chairperson or Deputy
Chairperson is, for all purposes, taken to be service as a Judge.
2 Acting members
(1) During the illness or absence of the Chairperson, the Alternate
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) During the illness or absence of the Alternate Chairperson, the Deputy
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
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the illness or absence of the Chairperson) and is taken to be the
Alternate Chairperson.
(3) The Governor may, from time to time, appoint a judicially qualified
person 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 is taken to be the
Deputy Chairperson.
(4) If a community member is granted leave of absence by the Minister,
the Governor may appoint a person to act in the office of the member
during the member's absence, and that person, while so acting, has all
the functions of the member and is 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 is taken to be an absence from office of
the Chairperson, Alternate Chairperson or Deputy Chairperson,
and
(b) the Alternate Chairperson or Deputy Chairperson is taken to be
absent from the office of Alternate Chairperson or Deputy
Chairperson during any period of acting in another office under
subclause (1) or (2).
3 Deputies
(1) An official member may from time to time nominate an officer of the
Department to be the deputy of an official member, and either the
official member or the Commissioner may revoke such a nomination
at any time.
(2) In the absence of an official 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
taken to be a member.
4 Term of office
Subject to this Schedule, an appointed member holds office for 3 years,
but is eligible (if otherwise qualified) for re-appointment.
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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 appointed member
(1) The office of an appointed member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) is removed from office by the Governor, or
(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, or
(f) becomes a mentally incapacitated person, or
(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, or
(h) being a judicial member, ceases to be a judicially qualified
person.
(2) The Governor may remove an appointed member from office at any
time.
7 Revocation of appointment as official member
(1) The Commissioner may at any time revoke the appointment of an
official member.
(2) On revocation under this clause, the office, as an official member, of
the person affected is taken to be vacant.
8 Filling of vacancy in office of appointed member
If the office of an appointed member becomes vacant, a person is,
subject to this Act, to be appointed to fill the vacancy.
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9 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.
Part 2 Procedure
10 Establishment of committees and appointment of other persons
(1) The Review Council may establish committees, or appoint any person
or persons, to assist it in connection with the exercise of any of its
functions.
(2) If a committee is established:
(a) the members of that committee may be members of the Review
Council, and
(b) the procedure for the calling of meetings of a committee and for
the conduct of business at those meetings is to be determined
by the chairperson of the committee (subject to any
determination of the Review Council), and
(c) the Review Council may delegate to that committee such of its
functions as may be prescribed by the regulations.
11 General procedure
(1) Except as otherwise provided by this Act or the regulations:
(a) meetings of the Review Council are to be held at such times
and places as are fixed by the Chairperson, and
(b) the procedure for the convening of meetings of the Review
Council and for the conduct of business at those meetings is to
be as determined by the Chairperson.
(2) The Review Council may from time to time adjourn its proceedings to
such times, dates and places and for such reasons as it thinks fit.
(3) The Review Council is not bound by the rules of evidence, but may
inform itself of any matter in such manner as it thinks appropriate.
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(4) Proceedings before the Review Council:
(a) are to be closed to the public, unless the Review Council
determines in a particular case that the proceedings are to be
conducted wholly or partly in public, and
(b) are not to be conducted in an adversarial manner, and
(c) are to be conducted with as little formality and technicality, and
with as much expedition, as fairness to any affected person and
the requirements of this Act permit.
(5) A decision of the Review Council is not vitiated merely because of any
informality or want of form.
12 Quorum
The quorum for a meeting of the Review Council is 3 members
consisting of one judicial member, one community member and one
official member.
13 Attendance of community members
(1) For the purposes of any meeting of the Review Council, not more than
3 community members may attend for the purposes of constituting the
Review Council.
(2) If there are more than 3 community members present at a particular
meeting, the members who may attend the meeting are to be
determined in accordance with arrangements approved by the
Chairperson of the Review Council.
14 Presiding members
(1) The Chairperson or a judicial member nominated by the Chairperson
is to preside at a meeting of the Review Council.
(2) At a meeting of a Division, the judicial member of the Division is to
preside.
15 Voting
If the Chairperson and the Alternate Chairperson or Deputy
Chairperson, or both, are present at a meeting of the Review Council,
only the Chairperson is entitled to vote with respect to any decision.
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16 Decisions
(1) A decision supported by a majority of the votes cast at a meeting of the
Review Council 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 Review Council.
(2) In the case of an equality of votes, the judicial member presiding at a
meeting of the Review Council is to have the casting vote.
(3) 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.
17 Record of proceedings
(1) The member presiding at a meeting of the Review Council must cause
a record of the proceedings at the meeting to be made.
(2) Records made for the purposes of this clause may be destroyed after
the expiry of the period prescribed by the regulations.
18 Authentication of documents
Any document requiring authentication by the Review Council is
sufficiently authenticated if it is signed by:
(a) the member who presided at the meeting of the Review Council
that dealt with the proceedings with respect to which the
document was prepared, or
(b) in the absence of that member, any other member who was
present at that meeting.
19 Evidentiary certificate
A certificate issued by the Executive Officer and Registrar of the
Review Council, being a certificate that records any determination or
decision of the Review Council is admissible in any legal proceedings
and is evidence of the matters so recorded.
20 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 Review Council, or
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(b) any determination, decision or recommendation of the Review
Council, 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
Review Council.
21 Application of Part to Divisions of the Review Council
This Part applies to a Division of the Review Council in the same way
as it applies to the Review Council, except to the extent to which this
Part otherwise provides.
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Schedule 3 Inspector-General
Schedule 3 Inspector-General
(Section 210)
1 Acting Inspector-General
(1) The Minister may, from time to time, appoint a person to act in the
office of Inspector-General during the illness or absence of the
Inspector-General.
(2) The person, while so acting, has all the functions of the
Inspector-General and is taken to be the Inspector-General.
(3) The Minister may, at any time, remove a person from office as acting
Inspector-General.
(4) A person while acting in the office of Inspector-General is entitled to
be paid such remuneration (including travelling and subsistence
allowances) as the Minister may from time to time determine.
(5) For the purposes of this clause, a vacancy in the office of
Inspector-General is taken to be an absence from the office of
Inspector-General.
2 Office of Inspector-General may be full-time or part-time
The office of Inspector-General may be a full-time or part-time office,
according to the terms of the relevant instrument of appointment.
3 Term of office
Subject to this Schedule, the Inspector-General holds office for such
term not exceeding 3 years as may be specified in the relevant
instrument of appointment, but is eligible (if otherwise qualified) for
re-appointment.
4 Remuneration
(1) The Inspector-General is entitled to be paid:
(a) while holding office on a full-time basis, remuneration in
accordance with the Statutory and Other Offices Remuneration
Act 1975, or
(b) while holding office on a part-time basis, such remuneration as
the Minister may from time to time determine.
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(2) The Inspector-General is also entitled to be paid such travelling and
subsistence allowances as the Minister may from time to time
determine in respect of the Inspector-General.
5 Vacancy in office
(1) The office of Inspector-General becomes vacant if the holder:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) is removed from office by the Governor, or
(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, or
(f) becomes a mentally incapacitated person, or
(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.
(2) The Governor may remove a person from the office of the
Inspector-General:
(a) on the ground of incapacity, incompetence, misbehaviour or
unsatisfactory performance, or
(b) on the ground that the person is no longer eligible to be
appointed as Inspector-General, as referred to in section 210
(2).
6 Filling of vacancy
If the office of Inspector-General becomes vacant, a person is, subject
to this Act, to be appointed to fill the vacancy.
7 Public Sector Management Act 1988
The Public Sector Management Act 1988 does not apply to the
appointment of the Inspector-General, and the holder of that office is
not, as holder, subject to that Act.
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Schedule 4 Official Visitors
Schedule 4 Official Visitors
(Section 228)
1 Acting Official Visitors
(1) The Minister may, from time to time, appoint a person to act in the
office of an Official Visitor during the illness or absence of the Official
Visitor.
(2) The person, while so acting, has all the functions of an Official Visitor
and is taken to be an Official Visitor.
(3) The Minister may, at any time, remove a person from office as acting
Official Visitor.
(4) A person while acting in the office of an Official Visitor is entitled to
be paid such remuneration (including travelling and subsistence
allowances) as the Minister may from time to time determine.
(5) For the purposes of this clause, a vacancy in the office of an Official
Visitor is taken to be an absence from office of the Official Visitor.
2 Term of office
Subject to this Schedule, an Official Visitor holds office for such
period not exceeding 2 years as may be specified in the relevant
instrument of appointment, but is eligible (if otherwise qualified) for
re-appointment.
3 Remuneration
An Official Visitor is entitled to be paid such remuneration (including
travelling and subsistence allowances) as the Minister may from time
to time determine.
4 Declaration of interest
(1) Before being appointed as an Official Visitor or as an acting Official
Visitor to a correctional centre that is being managed under a
management agreement, a person must make a declaration of his or her
interest (if any) in the agreement or in the management company under
the agreement.
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(2) For the purposes of a declaration under this clause, a reference in
subclause (1) to an interest in the management company includes a
reference to:
(a) any shareholding in the management company or in any related
body corporate within the meaning of the Corporations Law,
and
(b) any interest in business dealings that are taking place or that
have taken place with the management company or any director
or officer of the management company.
(3) A person is not to be appointed as an Official Visitor or acting Official
Visitor if, in the opinion of the Minister, the person has such an
interest in the management agreement or the management company
that the person should not be so appointed.
5 Vacancy in office of Official Visitor
(1) The office of an Official Visitor becomes vacant if the Official Visitor:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) is removed from office by the Minister under this clause, or
(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, or
(f) becomes a mentally incapacitated person, or
(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.
(2) The Minister may remove an Official Visitor from office at any time
for such cause as to the Minister seems sufficient.
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(3) In particular, the Minister may remove from office an Official Visitor
who contravenes section 228 or who, in the case of a managed
correctional centre, is found:
(a) to have such an interest in the relevant management agreement
or the management company under that agreement that the
person ought not, in the opinion of the Minister, continue to be
an Official Visitor to the correctional centre, or
(b) to have made a declaration under clause 4 that was false or
misleading in a material particular.
6 Filling of vacancy in office of Official Visitor
If the office of an Official Visitor becomes vacant, a person may,
subject to this Act, be appointed to fill the vacancy.
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Savings, transitional and other provisions Schedule 5
Schedule 5 Savings, transitional and other provisions
(Section 272)
Part 1 Preliminary
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
Crimes (Administration of Sentences) Act 1999
Crimes Legislation Amendment (Sentencing) Act 1999
(2) Such a provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later day.
(3) To the extent to which such a provision 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 that publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of that publication.
Part 2 Provisions consequent on enactment of Crimes
(Administration of Sentences) Act 1999
Division 1 Correctional Centres Act 1952
2 Definitions
In this Division:
1952 Act means the Correctional Centres Act 1952, as in force
immediately before the appointed day.
appointed day means the day on which Part 2 of this Act commences.
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3 Correctional complexes and correctional centres
Any premises that, immediately before the appointed day, were a
correctional complex or correctional centre by virtue of a proclamation
under section 5 of the 1952 Act are taken to be a correctional complex
or correctional centre, as the case requires, by virtue of a proclamation
under section 224 or 225 of this Act.
4 Continuation of certain appointments
(1) Any person who, immediately before the appointed day, was an
Official Visitor appointed under section 8A of the 1952 Act is taken
to be an Official Visitor appointed under section 228 of this Act.
(2) Any person who, immediately before the appointed day, was a Visiting
Justice appointed under section 10 of the 1952 Act is taken to be a
Visiting Justice appointed under section 227 of this Act.
(3) Any person who, immediately before the appointed day, was appointed
to inquire into and report on a matter under section 11A of the 1952
Act is taken to have been appointed to inquire into and report on that
matter under section 230 of this Act, and any such inquiry may be
conducted accordingly.
5 Correctional centre offences
(1) Any inquiry or other proceedings that, immediately before the
appointed day, had been commenced but not concluded under Part 4
of the 1952 Act may be continued and concluded under that Part as if
the 1952 Act had not been repealed.
(2) Any penalty imposed under Part 4 of the 1952 Act, whether before or
after the appointed day, is taken to have been imposed under Division
6 of Part 2 of this Act.
(3) Any record of penalties made for the purposes of section 26F of the
1952 Act is taken to have been made for the purposes of section 61 of
this Act.
6 Transfer of inmates
Any order or permit that, immediately before the appointed day, was
in force under section 27, 28 or 29 of the 1952 Act is taken to be an
order or permit in force under section 23, 24, 25 or 26 of this Act, as
the case requires, and may be revoked or amended accordingly.
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7 Warrants
Any warrant that, immediately before the appointed day, was in force
under section 29 of the 1952 Act is taken to be a warrant in force
under section 39 of this Act, and may be enforced accordingly.
8 Interstate leave of absence
(1) Any order that, immediately before the appointed day, was in force
under section 29AB of the 1952 Act is taken to be an order in force
under section 28 of this Act, and may be revoked or amended
accordingly.
(2) Any interstate leave permit that, immediately before the appointed day,
was in force under section 29AC of the 1952 Act is taken to be an
interstate leave permit in force under section 29 of this Act, and may
be revoked or amended accordingly.
9 Certain absences not to affect length of sentence
Section 40 of this Act applies to any absence from custody to which
section 29B of the 1952 Act applied immediately before the appointed
day.
10 Management agreements
A management or submanagement agreement in force immediately
before the appointed day under section 31B of the 1952 Act is taken
to be a management or submanagement agreement, as the case
requires, in force under section 238 or 239 of this Act.
11 Authorisations
An authorisation in force immediately before the appointed day under
section 31C of the 1952 Act is taken to be an authorisation in force
under section 240 of this Act.
12 Monitors
Any person who, immediately before the appointed day, was appointed
as a monitor for the purposes of section 31E of the 1952 Act is taken
to have been appointed as a monitor for the purposes of section 242 of
this Act.
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13 Minimum standards under management agreements
Any statement that was prepared for the purposes of section 31J of the
1952 Act is taken to be a statement prepared for the purposes of
section 248 of this Act.
14 Correctional centre returns to Supreme Court
Any return made under section 40A of the 1952 Act is taken to be a
return made for the purposes of section 258 of this Act.
15 Evidentiary certificates
Any certificate issued under section 40B of the 1952 Act is taken to be
a certificate issued under section 260 of this Act.
16 Attendance orders
Any order that, immediately before the appointed day, was in force
under section 44 of the 1952 Act is taken to be an order in force under
section 77 of this Act, and may be revoked or amended accordingly.
17 Serious Offenders Review Council
(1) The Serious Offenders Review Council constituted by this Act is a
continuation of, and the same entity as, the Serious Offenders Review
Council constituted under the 1952 Act.
(2) Subject to this Act, the persons who, immediately before the appointed
day, were members of the Serious Offenders Review Council under
the 1952 Act continue to hold office as members of the Serious
Offenders Review Council under this Act for the remainder of their
terms of office under the 1952 Act.
(3) A Management Committee established under section 63 of the 1952
Act continues as a Management Committee under section 206 of this
Act.
(4) Subject to this Act, the persons who, immediately before the appointed
day, were members of a Management Committee under section 63 of
the 1952 Act continue to hold office as members of the corresponding
Management Committee under this Act for the remainder of their
terms of office under the 1952 Act.
(5) A Management Committee subcommittee established under section 63
of the 1952 Act continues as a Management Committee subcommittee
under section 207 of this Act.
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(6) Subject to this Act, the persons who, immediately before the appointed
day, were members of a Management Committee subcommittee under
section 63 of the 1952 Act continue to hold office as members of the
corresponding Management Committee subcommittee under this Act
for the remainder of their terms of office under the 1952 Act.
18 Continuation of existing regulations
The following regulations under the 1952 Act are taken to be
regulations made under this Act, and may be amended and repealed
accordingly:
(a) the Correctional Centres (Administration) Regulation 1995,
(b) the Correctional Centres (General) Regulation 1995.
Division 2 Periodic Detention of Prisoners Act 1981
19 Definitions
In this Division:
1981 Act means the Periodic Detention of Prisoners Act 1981, as in
force immediately before the appointed day.
appointed day means the day on which Part 3 of this Act commences.
20 Periodic detention orders
Any order for periodic detention that, immediately before the
appointed day, was in force under the 1981 Act is taken to be a
periodic detention order in force under this Act, and may be revoked
or amended accordingly.
21 Work orders and attendance orders
(1) Any order that, immediately before the appointed day, was in force
under section 10 of the 1981 Act is taken to be an order in force under
section 84 (1) of this Act, and may be revoked or amended
accordingly.
(2) Any order that, immediately before the appointed day, was in force
under section 11 of the 1981 Act is taken to be an order in force under
section 84 (4) of this Act, and may be revoked or amended
accordingly.
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22 Variation of day, time and place for periodic detention
Any order that, immediately before the appointed day, was in force
under section 11A, 12 or 13 of the 1981 Act is taken to be an order in
force under section 85 of this Act, and may be revoked or amended
accordingly.
23 Leave of absence
Any leave of absence granted under the 1981 Act is taken to have been
granted under Division 2 of Part 3 of this Act.
24 Extension of term of imprisonment
If a term of the sentence to be served by way of periodic detention
under an order for periodic detention under the 1981 Act was extended
under that Act, the term of the sentence to be served by way of
periodic detention under a periodic detention order under this Act is
taken to have been extended accordingly.
25 Exemption from extension of term of imprisonment
Any exemption that, immediately before the appointed day, was in
force under section 21A of the 1981 Act is taken to be an exemption
in force under section 90 of this Act, and may be revoked or amended
accordingly.
26 Exemptions for health reasons or compassionate grounds
Any order that, immediately before the appointed day, was in force
under section 21B of the 1981 Act is taken to be an order in force
under section 92 of this Act, and may be revoked or amended
accordingly.
27 Directions
Any direction that, immediately before the appointed day, was in force
under section 22 of the 1981 Act is taken to be an order in force under
section 94 of this Act, and may be revoked or amended accordingly.
28 Proceedings under 1981 Act
Any proceedings that had been commenced, but not determined, under
the 1981 Act before the appointed day are to be continued and
disposed of under that Act as if that Act had not been repealed.
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29 Warrants
Any warrant that, immediately before the appointed day, was in force
under section 26 of the 1981 Act is taken to be a warrant in force
under section 181 of this Act, and may be enforced accordingly.
30 Appeals to Court of Criminal Appeal
Division 5 of Part 7 of this Act applies to a decision of the Parole
Board to cancel an order for periodic detention under the 1981 Act in
the same way as it applies to a decision of the Parole Board to revoke
a periodic detention order under Division 1 of Part 7 of this Act.
31 Eligibility for parole of existing periodic detainees
(1) This clause applies to a sentence of imprisonment that was imposed
before 1 February 1999 and that is the subject of a periodic detention
order made before that date.
(2) Any person who becomes liable to full-time imprisonment as a
consequence of the revocation by the Parole Board of a periodic
detention order referred to in subclause (1) is eligible for parole under
section 159 of this Act as if a non-parole period, expiring on the
commencement of this clause, had been set for the sentence in respect
of which the periodic detention order was made.
32 Continuation of existing regulations
The Periodic Detention of Prisoners Regulation 1995 is taken to be a
regulation made under this Act, and may be amended and repealed
accordingly.
Division 3 Home Detention Act 1996
33 Definitions
In this Division:
1996 Act means the Home Detention Act 1996, as in force immediately
before the appointed day.
appointed day means the day on which Part 4 of this Act commences.
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Schedule 5 Savings, transitional and other provisions
34 Home detention orders
Any home detention order that, immediately before the appointed day,
was in force under the 1996 Act:
(a) is taken to be a home detention order within the meaning of this
Act, and
(b) is taken to be subject to the same conditions as those to which
it was subject immediately before that day.
35 Proceedings under 1996 Act
Any proceedings that had been commenced, but not determined, under
the 1996 Act before the appointed day are to be continued and
disposed of under that Act as if that Act had not been repealed.
36 Appeals to Court of Criminal Appeal
Division 5 of Part 7 of this Act applies to a decision of the Parole
Board to revoke a home detention order under the 1996 Act in the
same way as it applies to a decision of the Parole Board to revoke a
home detention order under Division 2 of Part 7 of this Act.
Division 4 Community Service Orders Act 1979
37 Definitions
In this Division:
1979 Act means the Community Service Orders Act 1979, as in force
immediately before the appointed day.
appointed day means the day on which Part 5 of this Act commences.
38 Community service orders
Any community service order that, immediately before the appointed
day, was in force under the 1979 Act:
(a) is taken to be a community service order within the meaning of
this Act, and
(b) is taken to be subject to the same conditions as those to which
it was subject immediately before that day.
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39 Assigned officers and supervisors
(1) Any person who, immediately before the appointed day, was an
assigned officer in relation to a community service order under the
1979 Act is taken to be an assigned officer in relation to the
corresponding community service order under Part 5 of this Act.
(2) Any person who, immediately before the appointed day, was a
supervisor under the 1979 Act is taken to be a supervisor under Part
5 of this Act.
40 Work performed under former community service orders
Any work performed for the purposes of a community service order
under the 1979 Act is taken to be work performed for the purposes of
the corresponding community service order under this Act.
41 Extension of period of former community service orders
Any extension of the period of a community service order under
section 17 of the 1979 Act is taken to be an extension of the period of
the corresponding community service order under section 114 of this
Act.
42 Proceedings under 1979 Act
Any proceedings that had been commenced, but not determined, under
the 1979 Act before the appointed day are to be continued and
disposed of under that Act as if that Act had not been repealed.
43 Summonses and warrants
Any summons or warrant that, immediately before the appointed day,
was in force under section 24 of the 1979 Act is taken to be a
summons or warrant in force under section 116 of this Act, and may
be enforced accordingly.
44 Application of Division 2 of Part 5
Division 2 of Part 5 of this Act applies to any matter to which Part 4
of the 1979 Act applied immediately before the appointed day.
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Schedule 5 Savings, transitional and other provisions
Division 5 Sentencing Act 1989
45 Definitions
In this Division:
1989 Act means the Sentencing Act 1989, as in force immediately
before the appointed day.
appointed day means the day on which Part 6 of this Act commences.
46 Parole orders
Any parole order that, immediately before the appointed day, was in
force under the 1989 Act:
(a) is taken to be a parole order within the meaning of this Act, and
(b) is taken to be subject to the same conditions as those to which
it was subject immediately before that day.
47 Effect of parole orders under 1989 Act
Section 132 of this Act applies to any period for which a person was
lawfully released on parole under the 1989 Act in the same way as it
applies to any period for which a person is lawfully released on parole
under Part 6 of this Act.
48 Proceedings under 1989 Act
Any proceedings that had been commenced, but not determined, under
the 1989 Act before the appointed day are to be continued and
disposed of under that Act as if that Act had not been repealed.
49 Warrants
Any warrant that, immediately before the appointed day, was in force
under section 36 of the 1989 Act is taken to be a warrant in force
under section 181 of this Act, and may be enforced accordingly.
50 Evidentiary certificates
Any certificate issued under section 52 of the 1989 Act is taken to be
a certificate issued under section 260 of this Act.
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51 Appeals to Court of Criminal Appeal
(1) Subdivision 4 of Division 2 of Part 6 of this Act applies to a decision
of the Parole Board to refuse parole under the 1989 Act in the same
way as it applies to a decision of the Parole Board to refuse parole
under Subdivision 2 or 3 of Division 2 of Part 6 of this Act.
(2) Division 5 of Part 7 of this Act applies to a decision of the Parole
Board to revoke parole under the 1989 Act in the same way as it
applies to a decision of the Parole Board to revoke a parole order
under Division 3 of Part 7 of this Act.
52 Parole Board
(1) The Parole Board constituted by this Act is a continuation of, and the
same entity as, the Parole Board constituted by the 1989 Act.
(2) Subject to this Act, the persons who, immediately before the appointed
day, were members of the Parole Board under the 1989 Act continue
to hold office as members of the Parole Board under this Act for the
remainder of their terms of office under the 1989 Act.
53 Victims Register
The Victims Register kept under section 22M of the 1989 Act is taken
to be the Victims Register kept under section 256 of this Act.
Division 6 General
54 Definitions
In this Division:
appointed day means the day appointed under section 2 for the
commencement of the provision of this Act in relation to which that
expression is used.
old legislation means:
(a) any Act or instrument repealed by Schedule 1 to the Crimes
Legislation Amendment (Sentencing) Act 1999, as in force
immediately before its repeal, and
(b) any Act or instrument amended by Schedule 2, 3, 4 or 5 to the
Crimes Legislation Amendment (Sentencing) Act 1999, as in
force immediately before its amendment.
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Schedule 5 Savings, transitional and other provisions
55 Common law recognizances
Any recognizance to be of good behaviour that was in force
immediately before the power to require a person to enter into such a
recognizance was abolished by section 101 of the Crimes (Sentencing
Procedure) Act 1999 continues to have effect, and may be enforced,
as if that power had not been abolished.
56 Delegations
Any delegation that, immediately before the appointed day, was in
force under a provision of the old legislation for which there is a
corresponding provision in this Act is taken to be a delegation in force
under the corresponding provision of this Act.
57 Construction of certain references
Subject to the regulations, in any Act or instrument:
(a) a reference to a provision of the old legislation for which there
is a corresponding provision in this Act extends to the
corresponding provision of this Act, and
(b) a reference to any act, matter or thing referred to in a provision
of the old legislation for which there is a corresponding
provision in this Act extends to the corresponding act, matter
or thing referred to in the corresponding provision of this Act.
58 Construction of certain other references
In any Act or instrument:
(a) a reference to the Comptroller-General of Prisons is to be read
as a reference to the Commissioner of Corrective Services, and
(b) a reference to the Deputy Comptroller-General of Prisons is to
be read as a reference to the Deputy Commissioner of
Corrective Services, and
(c) a reference to the Department of Prisons is to be read as a
reference to the Department of Corrective Services.
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59 General saving
Subject to the regulations:
(a) anything begun before the appointed day under a provision of
the old legislation for which there is a corresponding provision
in this Act may be continued and completed under the old
legislation as if the Crimes Legislation Amendment
(Sentencing) Act 1999 had not been enacted, and
(b) subject to paragraph (a), anything done under a provision of the
old legislation for which there is a corresponding provision in
this Act (including anything arising under paragraph (a)) is
taken to have been done under the corresponding provision of
this Act.
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