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Commonwealth parole

Information about what happens to prisoners who have been imprisoned for a Commonwealth offence.

A prisoner who has been a jailed for a federal offence, that is for breaking a Commonwealth law, is governed by the Attorney-General and not the Victorian Parole Board. However, their parole is managed by the applicable state parole board.

Examples of common federal offences are social security offences, fraud against the Commonwealth, importation of narcotics into Australia or terrorism.

Fixing a non-parole period

If a person is sentenced to prison for more than 3 years in total for one or more federal offences, the sentencing court must fix a non-parole period or make a recognisance release order unless they believe that it is not appropriate to do so. This does not mean that the person will definitely get parole, it just means that the minister or delegated decision-maker has to consider parole before the end of the person's non-parole period.

A recognisance order (or bond) is a conditional release where a prisoner is sentenced to a period of imprisonment but an order is made for their release on giving security that they will comply with certain conditions, such as being of good behaviour or paying compensation. It is effectively a suspended jail term with conditions attached. These orders may be made for federal sentences of 3 years or less.

See ss. 16F, 19AB, 19AC, s. 20, s. 3—Crimes Act 1914 (Cth)(opens in a new window).

Non-parole period set for federal offences only

A court may only fix a non-parole period for federal offences. Any state prison sentence is dealt with separately.

See s. 19AJ—Crimes Act 1914 (Cth)(opens in a new window) and Prisoner jailed for both state and federal offences.

Parole must be explained at time of sentencing

When a court imposes a Commonwealth sentence that includes a non-parole period as part of that sentence, they have to explain in language that the person is likely understand, about the possibility of a parole order, the conditions that may be imposed and what will happen if the conditions are not met.

See s. 16F—Crimes Act 1914 (Cth)(opens in a new window).

Parole for terrorism, treachery, espionage or treason

Urging violence, terrorism, treachery and treason offences are treated differently when it comes to parole. For people who have been convicted of any of the offences mentioned in s. 19AG of the Crimes Act 1914, a non-parole period of at least ¾ of the minimum non-parole offence, or of the aggregate of multiple sentences, has to be imposed.

See s. 19AG—Crimes Act 1914 (Cth)(opens in a new window) and Divisions 80, 89—Criminal Code Act 1995 (Cth)(opens in a new window).

Deciding whether to grant a parole order

Commonwealth prisoners have to complete a parole application while they are in custody. This will be submitted to the Commonwealth Attorney General's department by the Parole Central Unit.

The Minister for Border Force is responsible for federal offenders and so decisions about whether or not to grant parole are usually made by this minister or their delegate. However, a delegate of the Attorney-General may also make decisions about parole.

The minister must make the decision before the end of the prisoner's fixed non-parole period. If they decide that parole should be granted, they will make a parole order, which directs the person to be released from prison.

A parole period cannot be any longer than 5 years.

If parole is refused

If parole is refused the minister must notify the person in writing within 2 weeks of the decision, giving the person a statement of reasons for their decision.

If parole is refused, the minister will have to review their decision within 12 months.

See s. 19AL—Crimes Act 1914 (Cth)(opens in a new window).

Factors to be considered when deciding whether to grant parole

The decision-maker will make a decision about whether or not to grant parole by weighing up the following:

  • the need to protect the community
  • whether release will help the prisoner transition to a lawful community life
  • the likelihood that the person will comply with the parole conditions set
  • the nature and circumstances of the offence
  • how the prisoner has behaved while in prison (or under previous parole)
  • any comments made by the sentencing court
  • the prisoner's criminal history
  • any report from Corrections Victoria.

See Deputy Commissioner's Instruction—Commonwealth Parole (link below)

Information relied on

Report Corrections Victoria

At least 4 months before the end of the offender’s non-parole period, the Commonwealth Attorney General's department will request a 'Parole Assessment Report from Corrections Victoria (or other relevant state and territory correction agency). This reports on the offender’s behaviour during their prison sentence. The report will make a recommendation whether the prisoner is suitable to be released on parole or not. The minister or delegated decision maker will rely on these when deciding whether to grant parole.

Submissions by the prisoner

The prisoner or their legal representative may also make a submission about parole. The prisoner should make their submission at least 4 months before the end of their non-parole period. Submissions are sent to the Commonwealth Attorney General’s department at the following address:

Principal Legal Officer
Federal Offenders Unit
Commonwealth Attorney-General’s Department
3-5 National Circuit
Barton ACT 2600

If the prisoner makes a submission, the decision maker has to take this into account.

See s. 19AL—Crimes Act 1914 (Cth)(opens in a new window).

Parole conditions

Parole is granted subject to the following conditions:

  • During the parole period the parolee must be of good behaviour and not violate any law.
  • If the order specifies that the parolee is subject to supervision, the parolee must obey all reasonable directions given by their supervisor(s).

The Attorney-General may also decide to impose other conditions on the parole order.

See s. 19AN—Crimes Act 1914 (Cth)(opens in a new window).

When parole ends

Parole ends on the last day of any Commonwealth sentence after deducting any relevant reduction or remission of the person’s sentence. If the person was serving a life sentence then parole ends on the later of:

  • 5 years after the person was released on parole, or
  • a later date if that is specified in the parole order.

Early release

There is an option to release a parolee from parole up to 30 days before the end of their non-parole period to provide for flexibility. For example, a person may be released early if their sentence is due to expire between Xmas and New Year or if they had enrolled to begin a course of study and their parole conditions may interfere with this.

See s. 19AMA(3), s. 19AL—Crimes Act 1914 (Cth)(opens in a new window).

Prisoner jailed for both state and federal offences

If a person has been found guilty of both state and federal offences the structure of the sentence has to be calculated carefully. Sometimes the prison term for the federal offence will only begin when the non-parole period for the state offence begins. If this happens, it will mean that there will be no parole period for the state offence.

If the Commonwealth sentence provides for a parole period, this may be different to the parole eligibility date for the state offence. If the date for parole for the federal offence is later than the date that the person would be eligible for parole under the state system, the person will not be able to get parole until the date that they are eligible for parole under their Commonwealth sentence. Parole may be granted by the Victorian Parole Board but delayed until the person is eligible for parole under the commonwealth system or the Board may defer the person's state parole until the date of their Commonwealth parole.

The Department of Justice will liaise with the Attorney General's office so that each jurisdiction is aware of what the other is doing in relation to parole. This will enable to Parole Board to make practical decisions about granting parole for the state offence.

See 5.5 Prisoners serving sentences for both Victorian and federal offences in Adult Parole Board Victoria—Parole manual(opens in a new window).

Release on parole

If the prisoner happens to be released on parole for the federal offence, while they still have some of their sentence to serve in relation to a state offence, their Commonwealth parole will not take effect until the prisoner is eligible for parole under state law.

The person will not be released on parole until they have accepted the conditions of their parole.

See s. 19AM—Crimes Act 1914 (Cth)(opens in a new window).

Breach of parole

A parolee who commits an offence while on parole may have their parole cancelled automatically in some circumstances. Also the Attorney-General may decide to revoke a parolee's parole if parole conditions are not met.

Automatic revocation of parole

Parole is automatically revoked if a person is sentenced to prison for more than 3 months for any offence. If this happens then the person will have to also serve the part of their prison sentence that remained before they were released on parole (less any remission or reduction of their sentence). That is, any period already served on parole has to be served again. Unlike the situation for state offences, the prisoner, whose parole has been revoked must serve the unserved balance of their parole before they serve their new sentence. The unserved balance begins the day that the offender is sentenced to more than 3 months jail.

The parolee will be issued with a warrant of detention authorising the person to be detained in prison to serve the remainder of their sentence(s).

See ss. 19AQ, 19AS—Crimes Act 1914 (Cth)(opens in a new window).

Attorney-General may revoke parole

The Attorney-General may revoke a person’s parole at any time before the end of their parole period if the prisoner has failed to comply with a condition of their parole, or if they have reasonable grounds to believe that the person has failed to comply.

The AG will notify the parolee in writing, telling that their parole is to be revoked and the conditions that they are alleged to have breached. Parole will end 14 days after the person is issued with this notice.

This notice period will be waived if the person cannot be found or if they have left Australia or if there are other urgent circumstances to justify revoking parole without notice.

See ss. 19AU, 19AZC, 19QA—Crimes Act 1914 (Cth)(opens in a new window).

Licence for release from prison

If there are exceptional circumstances, the AG may grant a licence for a person to be released from prison. This licence authorises the person to be released earlier than the date that they would have been eligible for release under the terms of their sentence.

If a person is released on licence, the conditions that they must follow are almost the same as if they were released on parole. They must be supervised and must report regularly to a parole officer and get approval for accommodation and employment.

See ss. 16, 19AP—Crimes Act 1914 (Cth)(opens in a new window).

More information

Legislation

Crimes Act 1914 (Cth)

  • s. 16—defines 'non-parole period', 'parole period' and 'parole order' and 'recognizance release order', 'licence'
  • s. 16E—commencement of sentences (account taken for time spent on remand)
  • s. 19—cumulative, partly cumulative or concurrent sentences
  • s. 19AB—when court must fix a non-parole period or make a recognizance order
  • s. 19AC—when court must fix a recognizance release order
  • s. 20—conditional release of offenders after conviction (s. 20(1)(b) explains recognizance)
  • s. 19AJ—court may only fix non-parole periods for Commonwealth jail sentences
  • s. 19AL—release on parole, making a parole order
  • s. 19AM—release on parole, when a person is released
  • s. 19AQ—when parole is automatically revoked
  • s. 19AS—court to issue a warrant of detention
  • s. 19AMA—release on parole, the parole period
  • s. 19AP—release from prison on licence
  • s. 19AZC—when court must fix a recognisance release order

See Crimes Act 1914 (Cth)(opens in a new window).

Criminal Code 1995 (Cth)

  • Division 80—Treason, urging violence and advocating terrorism
  • Division 90—offences relating to espionage and similar offences

See Criminal Code Act 1995 (Cth)(opens in a new window).

Reference

Adult Parole Board Victoria

See Adult Parole Board Victoria—Parole manual(opens in a new window).

VLA Professional Legal Education

See Deidre McCann's paper under References.

Updated