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Bill 1996 (No 2)
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
(f)
to change the name of the Offenders Review Board, and
(g)
for other purposes.
Many of the provisions of the Bill deal with serious offenders. The
expression serious offender is presently defined in section 59 of the Prisons
Act 1952, and includes life prisoners, prisoners who are serving a minimum
term of 12 years or more, prisoners convicted of murder, and certain
prisoners who are managed as serious offenders.
Clause 2 provides that the proposed Act is to commence on a day or days
proclaimed by the Governor-in-Council.
Clauses 35 are formal provisions giving effect to the Schedules of
amendments.
Change of name--Parole Beard
The Bill changes the name of the Offenders Review Board to the Parole
Board. References in this Explanatory Note to the Parole Board should be
read as extending to the Offenders Review Board pending the
commencement of the provisions changing its name.
See Schedule 1 [1], [ 16], [17]; Schedule 2 [1], [2], [5], [8]; Schedule 3.
Transitional provisions are included in clause 6 of Schedule 2A to the
Sentencing Act 1989, as inserted by Schedule 1 [37].
Re-organisation of Sentencing Act 1989 regarding parole
Division 2 of Part 3 of the Sentencing Act 1989 deals with parole for
prisoners with sentences of more than three years. The Bill divides the
Division into a series of Subdivisions, so that prisoners who are not serious
offenders will be dealt with by Subdivision 2, and serious offenders will be
dealt with by Subdivision 3. Under the present arrangements, both classes of
prisoners are dealt with under the one set of provisions; under the new
arrangements, they will be dealt with under separate sets of provisions
(although a number of the provisions in both Subdivisions are the same or
similar). This involves a number of consequential amendments.
See Schedule 1 [2], [3], [5], [9], [10], [11], [23].
Explanatory note page 2
Parole procedures concerning serious offenders
The Bill revises the procedures regarding the grant of parole to prisoners who
are serious offenders. As mentioned above, parole for serious offenders will
be dealt with by Subdivision 3 of Division 2 of Part 3. A significant alteration
will be the opportunity for victims and the State (as well as prisoners) to
make submissions to the Parole Board at key times.
Under the Bill, the Parole Board will be required to give preliminary
consideration as to whether a serious offender should be released on parole
and to formulate its initial intention either to make or not to make a parole
order (proposed section 22D). The Board will in due course decide whether
to make a parole order, on the following principles:
(a)
the Board will confirm its initial intention to make a parole order if
there are no victim submissions or it is not required to seek such
submissions,
(b)
the Board will reconsider its initial intention to make a parole order if
there are victim submissions and will in that event take into account
any prisoner submissions,
(c)
the Board will confirm its initial intention not to make a parole order if
there are no prisoner submissions,
(d)
the Board will reconsider its initial intention not to make a parole order
if there are prisoner submissions and will in that event take into
account any victim submissions (proposed sections 22E22K).
The functions of the Serious Offenders Review Council to provide reports
and advice to the Parole Board concerning the release on parole of serious
offenders will be re-enacted in Subdivision 3 (proposed section 22N).
See Schedule 1 [9].
Victim submissions to Parole Board
The Bill provides for a Victims Register of the names of victims of prisoners
who have requested that they be given notice by the Parole Board of the
possible parole of the prisoner concerned (proposed section 22M). Victims
who choose to make submissions to the Parole Board after the Board has
formulated its initial intention to make a parole order for a serious offender
will have to lodge a notice of intention to do so, after which a hearing of the
Board will be set to receive submissions (proposed section 22H).
Submissions can be made in writing or, with the approval of the Board,
orally. Submissions are made by the victim, or by a family representative of
Explanatory note page 3
the victim if the victim is dead or under any incapacity. Under clause 19 of
Schedule 1 to the principal Act, victims are entitled to be represented at
hearings held to hear their submissions. Victims will not be entitled to call or
examine witnesses, thereby ensuring that as far as possible the hearings will
be conducted in a non-adversarial fashion (proposed clause 19 (2) of
Schedule 1).
Similar arrangements are made for victims who choose to make submissions
to the Parole Board after the Board has formulated its initial intention not to
make a parole order for a serious offender and the serious offender indicates a
desire to make submissions to the Board (proposed section 221).
See Schedule 1 [9], [36].
State Submissions to Parole Board
The Bill provides that the State may also make submissions to the Parole
Board about the release on parole of serious offenders. The right of the State
to make submissions is at present contained in the regulations (proposed
section 220).
See Schedule 1 [9].
Application by State to Court of Criminal Appeal
Following a decision by the Parole Board to make a parole order, the
Attorney General or the Director of Public Prosecutions will be authorised to
apply to the Court of Criminal Appeal for a direction that the decision was
made on information that was false, misleading or irrelevant (proposed
section 23A). A parole order does not come into operation for eight days, to
allow for such an application to be made. If such an application is made
within seven days of the making of the parole order, the order is suspended
until the application is dealt with or suspended (proposed section 22L, (2),
(3)).
See Schedule 1 [9], [12].
Victim submissions and State submissions to Serious
offenders Review Council about security classification
A change is proposed by the Bill in the procedure to be adopted by the
Serious Offenders Review Council when making a recommendation for a
change in the security classification of a serious offender which would make
Explanatory note page 4
the offender eligible for consideration for release on leave from prison. Under
the Bill, the Review Council will not be able to make such a recommendation
until an opportunity has been given for victims to make written submissions
to the Council about the serious offender and any submissions have been
considered by the Council.
The State is also given a right to make submissions.
See Schedule 2 [7], [ [12].
Deferral of consideration of parole when prisoner is at large
The Bill will make it clear that the Parole Board can defer consideration of
parole in relation to a person who is still at large after revocation of a parole
order (proposed sections 18 (3) and 22C (3)).
See Schedule 1 [4], [9].
Power to decline to consider parole
The Bill will enable the Parole Board to decline to consider the grant of
parole for a prisoner for up to three years at a time (proposed sections 18 (4)
and 22C (4)).
See Schedule 1 [4], [9].
Request by State to revoke parole order
The Attorney General and the Director of Public Prosecutions will be
authorised to request the Parole Board to revoke a parole order granted to a
serious offender (proposed section 34A). The request is made on the ground
that the parole order was made on information that was false, misleading or
irrelevant. If the Parole Board refuses to revoke the parole order, the Attorney
General and the Director of Public Prosecutions can apply to the Court of
Criminal Appeal for a direction with respect to the information (proposed
section 41A).
See Schedule 1 [ [13], [14].
Community members of the Parole Board
At present there are 4 community members of the Parole Board. Because of
the frequent meetings of the Board, the Bill enables the appointment of 16
community members. However, only 4 of those members may attend a
particular meeting for the purposes of constituting the Board.
See Schedule 1 [18], [21], [22].
Explanatory note page 5
Judicial members of the Parole Board and Serious Offenders
Review Council
At present the judicial members of the Parole Board and the Serious
Offenders Review Council are required to be Judges of the District Court or
retired Judges of the Supreme Court or District Court. The Bill extends the
persons eligible to be appointed as judicial members to Judges or retired
Judges of the Federal Court or any New South Wales Court, Magistrates or
retired Magistrates and any person qualified to be appointed as a Judge of a
New South Wales Court. See Schedules 1 [20], [22], [29], [30], [33] and
Schedule 2 [3], [4], [9][11].
Misconduct during hearings of the Parole Board
The Parole Board is required to hold hearings for the purpose of granting
parole at which prisoners and victims making submissions may attend. The
Bill makes it an offence if persons attending the hearing misconduct
themselves or if they fail to leave the hearing after being directed to do so by
the judicial member presiding.
See Schedule 1 [35].
Consideration of public interest by Serious Offenders Review
Council
The Serious Offenders Review Council will be expressly required to take the
public interest into consideration when providing advice and making
recommendations about the security classification of serious offenders, the
placement of serious offenders, and developmental programs provided for
serious offenders. The Bill lists a number of matters to be taken into account
when considering the public interest.
See Schedule 2 [6].
Statute law revision
The Bill amends the Sentencing Act 1989 by way of statute law revision. The
amendments are consequential on administrative changes or on other changes
made by the Bill.
See Schedule 1 [6][8], [15], [24][27].
Savings and transitional provisions
The Bill inserts a Schedule of savings and transitional provisions into the
Sentencing Act 1989. Parole orders already made are unaffected, but
generally the amendments made by the Bill will extend to existing prisoners.
See Schedule 1 [28], [37].
Explanatory note page 6