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ALRC: For good behaviour?

Every Issue

Cite as: (2005) 79(7) LIJ, p. 92

The ALRC is considering how federal parole arrangements compare with those in the states and territories and whether discretionary parole is fair and effective.

Parole arrangements for federal offenders are under review by the Australian Law Reform Commission (ALRC) as a result of its current inquiry into the sentencing of federal offenders.

The federal parole system in Australia differs in a number of significant ways to the parole systems that apply to state and territory prisoners. One of these differences is that, for most federal offenders, parole is granted automatically at the end of the non-parole period.

Where a federal offender has been sentenced to three years imprisonment or less, the court is required to make a “recognisance release order” rather than set a non-parole period. Under a recognisance release order the prisoner is released immediately, or after serving a period of imprisonment termed the “pre-release period”, which is set by the court. For sentences of six months or less, the court may make a recognisance release order but is not required to do so.

Where a federal offender has been sentenced to more than three years imprisonment, the court may make a recognisance release order or may set a non-parole period. Where the court sets a non-parole period, the decision to release the offender and the conditions to be imposed on the offender once released are placed in the hands of the executive. At the federal level, this power is formally exercised by the Attorney-General, although the authority to grant or refuse parole and to set conditions on parole has been delegated to senior officers of the Attorney-General’s Department. Because parole decisions are made by the executive at the end of the non-parole period, rather than the courts at the time of sentencing, a degree of administrative discretion is introduced into the process, potentially giving rise to some uncertainty as to the exact release date.

In the existing federal system, however, this discretion has been significantly limited by legislation. The Crimes Act 1914 (Cth) provides that where a federal offender has been sentenced to more than three years and less than 10 years imprisonment, the Attorney-General must grant parole at the end of the non-parole period. The vast majority of federal offenders are sentenced to less than 10 years and so are eligible for automatic release under a recognisance release order or on parole.

A real discretion arises in relation to federal offenders sentenced to 10 years or more. The Attorney-General – or more usually the departmental delegate – considers parole and prison reports provided by the state and territory correctional services in order to assess whether it is appropriate to release a federal prisoner on parole.

State and territory systems

State and territory systems differ from the federal system and between themselves. Automatic parole is available in Western Australia, New South Wales and South Australia. In Western Australia, prisoners serving less than 12 months must generally be released on parole after serving one half of their sentence. In New South Wales, offenders sentenced to three years or less will be released automatically at the end of their non-parole period, provided one was set at the time of sentence. In South Australia that period is five years.

While the use of automatic parole in these states appears to be similar to the federal system, it is important to note that the vast majority of sentences for federal offences falls within the automatic parole period. Automatic parole has a more limited operation in those states that use it. In 2001, about 12 per cent of prisoners fell within the automatic parole period in Western Australia and 50 per cent in South Australia.[1] New South Wales fell somewhere between these two figures. In the other states and territories, including Victoria, the decision to release a prisoner on parole is always a discretionary one, made in most cases by a parole authority but in some cases by the relevant minister or state governor.

There is an ongoing debate about the utility of discretionary parole.

The system has been justified on the basis that it contributes to maintaining order in prisons because early release is dependent on good behaviour, that the potential for early release can be used as an incentive for more active involvement in rehabilitation programs to address offending behaviour and that it protects the public to some extent because only prisoners who have demonstrated that they are ready to be reintegrated into the community are released on parole.

However, not everyone agrees that the parole “carrot” leads to genuine rehabilitation. Advocates of automatic parole have argued that the use of discretionary parole merely encourages inauthentic or “play-acted” participation in rehabilitative programs.[2]

It has also been argued that discretionary parole decisions by the executive at the end of the non-parole period allow too much indeterminacy in the sentencing process and judges are in the best position to decide how long an offender should spend in prison and under supervision in the community.[3]

The ALRC inquiry

After the release of an issues paper, Sentencing of Federal Offenders (IP 29), in February this year, the ALRC conducted extensive community consultations into the sentencing of federal offenders. The results of these consultations – and formal submissions received – will be considered in a discussion paper, to be released in October this year.

The discussion paper will contain draft proposals for reform. The ALRC will seek further comment and submissions on these draft proposals before writing its final report, due to be delivered to the federal Attorney-General at the end of January 2006.

The discussion paper will be available free of charge, either from the ALRC website at http://www.alrc.gov.au or in hardcopy or on CD. To receive a free copy of the discussion paper in hardcopy or on CD, please register your interest online or contact the ALRC on ph (02) 8238 6333.


Contributed by the AUSTRALIAN LAW REFORM COMMISSION, GPO Box 3708, Sydney 2001, ph (02) 8238 6333, fax (02) 8238 6363, email info@alrc.gov.au, website http://www.alrc.gov.au.

natlawreform@liv.asn.au


[1] Australian Bureau of Statistics, Year Book Australia 2003 (2003), Table 11.31.

[2] K Reitz, “Questioning the conventional wisdom of parole release authority” in M Tonry (ed), The Future of Imprisonment, 2004, OUP, pp199-200.

[3] P Burke, A Handbook for New Parole Board Members, 2003, The Association of Paroling Authorities International, p5.

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