NSW Offender Registration

The NSW Law Enforcement Conduct Commission's The New South Wales Child Protection Register: Operation Tusket Final Report released last week reveals disquieting problems with administration of a key offender and identity register.

The Commission states 

 The NSW Police Force established the Child Protection Register (the Register) in 2001, following the passage of the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). The CPOR Act requires offenders who have been convicted and sentenced for certain offences involving children or child abuse material to register with police when they re-enter the community. They must then provide reports to police of their personal details for a number of years. The purpose of the Register is to protect children from serious harm and ensure the early detection of offences by repeat child sex offenders who are in the community. The Register is a database that assists police to monitor and investigate these offenders. 

The Commission’s investigation has established that there have been problems with the Register for 17 years. Significant errors in the application of the CPOR Act started occurring as early as 2002. These errors have included incorrect decisions by the NSW Police Force about which persons should be included on the Register, and incorrect decisions about how long persons were legally required to make reports of their personal information to police under the CPOR Act (their ‘reporting period’). Some of these errors have resulted in child sex offenders being in the community without being monitored by the NSW Police Force as required by the CPOR Act. The Commission reviewed one case in which a person reoffended while unmonitored. Other errors have caused the NSW Police Force to unlawfully require people to report their personal information to police for a number of years. As a result, people have been wrongly convicted, and even imprisoned, for failing to comply with CPOR Act reporting obligations, when in fact those obligations did not apply to them at the relevant time. Two persons were unlawfully imprisoned for more than a year in total. 

The NSW Police Force has been aware for a number of years that there were significant issues with the Register. In 2014 the NSW Police Force Child Protection Registry (the Registry), the specialist unit in the State Crime Command responsible for maintaining the Register, started filing internal reports warning of systemic issues causing inaccuracies in the Register. Multiple reports from the Registry prompted the NSW Police Force to review 5,749 Register case files. This review was started in 2016 and took two years to complete. In October 2018 it concluded that 44 per cent (2,557) of those Register case files had contained errors. 

There are a number of factors which have contributed over time to the errors in the Register. One of the most significant factors is the difficulty of interpreting and applying the provisions of the CPOR Act. Another is the insufficient resources allocated to the Registry to handle an ever-increasing workload. 

The CPOR Act places obligations on courts and certain government agencies to assist the NSW Police Force to implement the registration scheme. However, almost since its inception, this multi-agency system has not been functioning as Parliament intended, particularly in relation to the identification of who are registrable persons. The NSW Police Force has taken a number of significant steps since the start of the Commission’s investigation to improve the administration of the Register, including doubling the staff in the Registry. This report contains 11 recommendations to remedy the unlawful conduct that has occurred and prevent further errors in the Register. Our key recommendations are that the NSW Police Force ensures that adequate resources are allocated to the Registry now and into the future to enable it to maintain the Register; that the CPOR Act be urgently referred to the NSW Law Reform Commission for comprehensive review so that the fundamental problems with the legislative framework can be addressed and the various statutory responsibilities of the NSW Police Force, courts and government agencies reconsidered, and that an independent body conduct audits of the Register. 

In Chapter 1 we describe how we conducted our investigation, referred to as Operation Tusket. Our investigation commenced in September 2017 on the basis of information provided in a public interest disclosure. Early in the investigation the NSW Police Force acknowledged there were a significant number of errors in the Register. The Commission and the NSW Police Force adopted a collaborative approach, sharing information and expertise to identify and address issues throughout the investigation. 

In Chapter 2 we set out the key elements of the Child Protection Register. We explain the purposes of the Register, and what are the consequences under the CPOR Act if a person is determined to be a ‘registrable person’. We describe the roles and responsibilities of the NSW Police Force Child Protection Registry and other police officers in relation to the Register. We explain that the Register is part of a national framework of different statutory registration schemes for sex offenders across Australia. 

In Chapter 3 we discuss the nature and extent of the errors that have occurred in the Register over time, including the results of the review of Register case files initiated by the NSW Police Force (called the ‘CPR case review’). We highlight the serious consequences of these errors through several case studies. We found that since 2002 the NSW Police Force has made over 700 incorrect decisions about who were ‘registrable persons’ under the CPOR Act, or about the length of registrable persons’ reporting periods. We also found that the NSW Police Force has unlawfully required people to report their personal information, and conducted unlawful inspections of persons’ homes, as a result of incorrect information in the Register. The NSW Police Force has also charged and arrested people for not complying with CPOR Act reporting obligations when those people were not under any obligation to report under that Act. As a result, at least seven people were wrongly convicted of offences under the CPOR Act. 

Chapter 4 explores the responses of the NSW Police Force to those persons who have been subjected to unlawful or unjust actions as a consequence of the errors in the Register. The NSW Police Force was generally proactive in seeking annulments from the courts when it identified that persons had been wrongly convicted for offences under the CPOR Act. However, in 2016 the NSW Police Force made the decision not to notify persons that it had made errors in their cases. Relying on internal legal advice, the NSW Police Force intentionally limited the information it provided to such persons, to avoid the prospect of civil claims. We found that on at least three occasions, the NSW Police Force wrote letters which were in fact misleading. The NSW Police Force now acknowledges that these letters are misleading, and has agreed to notify all those who may have been subjected to unlawful or unjust actions as a result of errors in the Register. 

In Chapters 5 to 8 we discuss the systemic problems which have contributed to the occurrence of so many errors in the administration of the Register. 

Chapter 5 looks at the resourcing of the Registry over time. There has been a steady increase in the demand, complexity and scope of the Registry’s work. In October 2003 there were 916 persons on the Register. By August 2019 there were 4,344. The Registry’s resources were not increased proportionate to its increasing workload. This resulted in the Registry being understaffed, which impacted on the accuracy of its work, its ability to engage in proactive investigative activities, and the welfare of its staff. Since the start of our investigation the NSW Police Force has added 14 officers to the Registry. We recommend that the NSW Police Force adopt a responsive model of resourcing for the Registry into the future. 

Chapter 6 examines the legislative framework for the Register. The NSW Police Force and the Commission agree that the CPOR Act is so complex and ambiguous in important respects that it creates an inherent risk of errors in the Register that the NSW Police Force cannot effectively mitigate. The legislative framework creates such practical difficulties that it undermines the Act’s object of ensuring that registrable persons are monitored and comply with their obligations. The Commission’s analysis of the CPOR Act, incorporating input from the NSW Police Force, identified over 20 issues. These issues are set out in full in Appendix 2, with examples of cases in which the complexity or ambiguity in the Act have led to errors. We recommend that the Attorney-General urgently refer the CPOR Act to the NSW Law Reform Commission for comprehensive review, to be completed within six months. 

In Chapter 7 we explain that courts and ‘supervising authorities’ have obligations under the CPOR Act to assist the NSW Police Force to implement the Register. However, there have been problems with compliance with some of these obligations for many years. Since 2003 authorities have been relying on the NSW Police Force to determine who the CPOR Act requires to be registered, even though the Act does not contemplate this role being performed by police. This shift away from the system envisioned by the CPOR Act has resulted in the NSW Police Force making decisions under that Act without access to adequate information. The NSW Police Force has already adopted some of our recommendations for interim solutions to improve the Registry’s access to the information necessary to implement the CPOR Act. However, ultimately, the respective roles of the courts, the NSW Police Force and other authorities in relation to the Register need to be reconsidered as part of the review of the CPOR Act recommended in Chapter 6. 

In Chapter 8 we discuss the electronic systems that the Registry uses to keep the information on the Register about offenders’ reporting obligations up to date. In 2014 Registry officers began to notice issues with these systems, and in 2015 it was reported that these problems had resulted in registered child sex offenders being released into the community without being monitored by the NSW Police Force under the CPOR Act. The NSW Police Force approved an IT project in 2017 to fix the issues with the electronic systems. At the time of writing, this project had not yet been completed. We recommend that the NSW Police Force take steps to ensure that the project is completed as soon as possible. 

In Chapter 9 we consider mechanisms to improve governance, quality assurance and accountability in relation to the Register. We recommend that an interagency committee and governance framework, involving the NSW Police Force, courts and supervising authorities, be established to improve compliance with each authority’s obligations under the CPOR Act. We also recommend that the NSW Police Force develop an internal governance framework to ensure all local commands comply with the statutory framework when managing registrable persons. We further recommend that the statutory framework for the Register be amended to provide for independent compliance audits of the Register, similar to the Sex Offenders Registration Act 2004 (Vic).

The Commission summarises its findings as

1: Since 2002 the NSW Police Force has made over 700 incorrect decisions about the administration of the Child Protection Register, including: • incorrect decisions that 96 people were not ‘registrable persons’ under the CPOR Act; • incorrect decisions that 43 people were ‘registrable persons’ under the CPOR Act; • incorrectly calculating the reporting periods of 485 registrable persons as being shorter than the periods required by the CPOR Act, and • incorrectly calculating the reporting periods of 144 registrable persons as being longer than the periods required by the CPOR Act. These incorrect decisions arose, wholly or in part, from mistakes of law or fact. 

2: As a result of the incorrect decisions referred to in Finding 1, the NSW Police Force unlawfully required persons to report their personal details to police for a number of years. Some of these persons were also subjected to unlawful home inspections by the NSW Police Force, in purported reliance on the power in s 16C of the CPOR Act. 

3: As a result of the incorrect decisions referred to in Finding 1, the NSW Police Force charged and arrested persons for failing to comply with reporting obligations or providing false or misleading information under the CPOR Act, when those persons were not under any obligation to report under that Act at the relevant time. These were actions of a serious nature which, although not unlawful, were unjust or oppressive in their effects. 

4: The NSW Police Force made decisions to write letters to Mr DD, Mr NN and Mr KK about their obligations under the CPOR Act, which were in effect misleading. These decisions, although not unlawful, were unreasonable or unjust in their effects.

Recommendations are

 1: Notify persons who may have been subjected to unlawful or unjust actions by the NSW Police Force. The NSW Police Force write to each of the 277 people identified by the CPR case review who may have been subjected to unlawful or unjust actions by the NSW Police Force as a result of errors in the Child Protection Register. Each letter should: • explain the specific error that was made in their case; • identify each of the types of actions that the NSW Police Force may have mistakenly subjected the person to as a result of that error, and • apologise for these errors, and suggest the person may wish to obtain independent legal advice. 

2: Adopt a responsive model of resourcing for the Child Protection Registry. The NSW Police Force ensure that the resourcing of the Registry is reviewed at least every two years, and that staffing is maintained at a level sufficient to perform statutory functions under the CPOR Act efficiently and accurately. 

3: Refer the CPOR Act to the NSW Law Reform Commission for review. The Attorney-General urgently refer the Child Protection (Offenders Registration) Act 2000 (NSW) to the NSW Law Reform Commission for comprehensive review, to be completed within six months. 

4: Introduce a statutory review mechanism. A provision should be included in the Child Protection (Offenders Registration) Act 2000 (NSW) (or any Act which replaces it) which gives a person the right to seek review by the NSW Police Force of the decision that they meet the definition of a registrable person under the Act, and/or the decision as to which reporting period applies to the person. Consideration should be given to providing a right of appeal from the NSW Police Force review to a tribunal or court. 

5: Establish a dedicated legal officer position in the Child Protection Registry. The NSW Police Force establish at least one ongoing legal officer position within the Registry that is dedicated solely to supporting Registry staff, and fill that position as a matter of priority. 

6: Provide reasons for decisions under the CPOR Act. The NSW Police Force provide written notification to each person placed on the Register of the basis upon which their status as a registrable person and their reporting period has been determined, including the sections of the CPOR Act relied on. For persons already on the Register, this information is to be provided upon request. 

7: Prioritise the ‘CPR COPS’ upgrade project. The NSW Police Force prioritise the recruitment for the CPR COPS upgrade project to ensure that the project is completed as soon as possible. 

8: Establish an Interagency Child Protection Register Committee. The NSW Police Force initiate the establishment of a Child Protection Register Committee with relevant authorities to discuss and decide the obligations,  compliance risks and mitigation strategies of each authority in relation to the statutory framework governing the Register.  

9: Develop an interagency governance framework. The NSW Police Force initiate the creation and implementation of a robust interagency governance framework to ensure consistent service delivery in accordance with each authority’s responsibilities under the statutory framework for the Register.

10: Implement a Child Protection Register governance framework. The NSW Police Force develop and implement a governance framework to ensure compliance by all local commands across New South Wales with the statutory framework for the Register. This framework should: • leverage the expertise of the Child Protection Registry to support local commands and provide quality assurance; • ensure that emerging compliance risks are identified and addressed, and • contain appropriate reporting mechanisms to ensure future accountability. 

11: Introduce independent compliance auditing of the Child Protection Register. Provisions should be included in the Child Protection (Offenders Registration) Act 2000 (NSW) (or any Act which replaces it) for independent compliance audits of the Register, with publicly reported (and de-identified) results, similar to those in the Sex Offenders Registration Act 2004 (Vic).

Obscurity

The Chance 'to Melt into the Shadows of Obscurity': Developing a Right to Be Forgotten in the United States' by Patrick O'Callaghan in A. Cudd and M. Navin (eds) Privacy: Core Concepts and Contemporary Issues (Springer, 2018) comments 

This chapter argues that there is some (limited) evidence of a right to be forgotten in the jurisprudence of U.S. courts. For the purposes of this argument, the right exists whenever interests in being forgotten and/or forgetting are understood as weighty enough to impose a duty on government and/or fellow citizens to respect those interests. Most of the relevant cases belong to the pre-digital era but nevertheless provide some doctrinal support for a right to be forgotten in the digital era. In particular, the chapter pays close attention to the privacy challenges associated with search engines and argues that it may be possible to implement a Google Spain-inspired right to be forgotten (in the sense of delisting or deindexing search results) in the United States.

Violence and Disclosure

The South Australian government has released a discussion paper on domestic violence, including a proposal - based on the UK Clare's Law - that would allow people to use an application to the police to gain access to the criminal record of a potential partner, with applicants having to establish their the bona fides.

Eight topics in the paper are

• Domestic Violence Disclosure Scheme - Who should be able to find out about someone’s history of domestic violence offending? How should this scheme work? 
• Expiry Dates on Intervention Orders - Should intervention orders (previously restraining orders) be able to expire? 
• Comprehensive Collection of Data -  What is the best way to ensure that accurate data relating to domestic violence is collected? 
• Allowing Video Evidence -  Should police video recordings from incidents be admissible as evidence at trial? 
• Confidentiality - Should changes be made to improve the confidentiality in court of medical and counselling records? 
• Drug and Alcohol Treatment -  Should the courts send domestic violence offenders to be assessed for drug and alcohol problems? 
• Housing and Homelessness Service Priorities - How can we best assist victims of domestic violence who are facing homelessness? 
• Fostering Supportive Environments - How can we assist domestic violence victims to seek support in the workplace and other environments?

In relation to the disclosure scheme the paper indicates

There is no system in South Australia that allows you to find out about a person’s history of domestic violence offending. The South Australian Government has committed to considering the development and implementation of a domestic violence disclosure scheme (DVDS) to make this possible. A DVDS would aim to reduce the incidents of domestic violence and strengthen the ability of police and agencies to provide protection and support to victims of abuse.

Under a DVDS, you can ask for information about a partner’s history as a domestic violence offender. A series of checks are then performed and a decision made about whether you are at risk and should be told about the person’s history.

Who Should be Allowed to Apply?

This is an important question open for community discussion. For example, should the scheme only be available to people in a current relationship, or should you be able to find out about a previous partner? We are also asking you to consider whether disclosure applications should be extended to include third parties, such as family, friends and colleagues.

The Application Process

A DVDS in South Australia must have a simple and accessible application process. In similar schemes in the UK and NSW, applications are made through the police. The police then determine whether a disclosure should be made based on whether it may prevent a future crime.

Disclosure of Information

The question of what information should be disclosed requires careful consideration. For example, should information be limited to prior convictions for relevant criminal offences, or should the threshold be wider to include intervention orders or allegations?

Once a decision is made to disclose information, a clear process should be put in place for how the disclosure should occur. Under the NSW scheme, a disclosure is made in person at a police station or other agreed place to the primary person (i.e. the person in the relationship). Support services are also present when a disclosure is made.

To ensure the person’s safety, the ‘subject’ of the disclosure is not advised that an application or disclosure has been made about them.

Community and expert views are sought on a number of key issues. We are asking you to consider the parameters and processes that should apply to a DVDS in South Australia. This includes who should be able to apply for a disclosure, how someone should apply for a disclosure, whether age limits should be enforced and the factors that should be considered when determining whether a disclosure should be made.

The paper notes

The impact of the UK DVDS on the prevalence of domestic violence is still unknown as neither of the two assessments completed by the Home Office have considered the impact the scheme may have had on domestic abuse victims.

The NSW Scheme

On 6 March 2015, the NSW Government announced it would pilot a DVDS similar to the scheme introduced in the UK and released a discussion paper seeking comments on the proposed scheme. After wide public consultation, which included a roundtable and targeted workshops with government and non-government organisations, the Government announced, on 14 October 2015, that the DVDS would be piloted in four NSW Police Force Local Area Commands (Sutherland, St George, Oxley and Shoalhaven). The NSW DVDS was rolled out on 13 April 2016 and will be evaluated over two years. NSW Police will receive and review all applications made by a person who is concerned about their partner, or a concerned third party, to find out if their partner has a history of domestic violence.

Under the NSW DVDS, a third party includes someone who has some form of contact with the primary person, e.g. family, friends or legal guardians. It also includes professionals working with a member of the family. On receipt of an application, NSW Police will check whether a relevant conviction exists that leads to a disclosure being made to the primary person. A conviction will be disclosed where the person who is the subject of the application has a relevant offence in their criminal history. Relevant offences include personal violence offences committed in a domestic relationship and certain specific personal violence offences committed outside of a domestic relationship. Breaches of apprehended violence orders will also be disclosed as they constitute a criminal offence.

Offences and orders that will not be disclosed under the NSW scheme include spent convictions and apprehended domestic violence orders.

A disclosure will be made in person at a police station or other agreed safe place, and the person receiving the information will be required to sign an undertaking that they will not misuse any information disclosed. Also present at the time of disclosure will be an expert from a domestic and family violence support service to provide support and help plan for the person’s safety. Support services will be present regardless of whether a disclosure is made or where a primary person is advised that no relevant conviction exists. This ensures that the primary person will have immediate access to the necessary support that is required when making a decision about their safety. The NSW Government also announced that it was investing $2.3 million to assist non-government organisations provide specialist services in the four local command areas ...

Disclosure of Information

In the UK, police have a common law power to disclose information where it is necessary to prevent a crime. However, any disclosures must be made in accordance with existing statutory obligations, such as the Data Protection Act 1998 and the Human Rights Act 1998. The UK Home Office DVDS Guidance 60 states that information sharing must: • be lawful, for example, the prevention, detection, investigation and punishment of a serious crime and the prevention of abuse or serious harm will usually be sufficiently strong public interests to override the duty of confidence; • comply with the eight Data Protection Principles set out in the Data Protection Act 1998; • be necessary; and • be proportionate.

The question of what information should be disclosed requires careful consideration. In the UK, Annex A of the DVDS Guidance sets out a non-exhaustive list of offences that may be disclosed. The only limitation is in relation to spent convictions which cannot be disclosed.

Disclosure under the NSW DVDS is limited to relevant offences which include personal violence offences committed in a domestic relationship, stalking, intimidation, breaches of Apprehended Domestic Violence Orders and specific personal violence offences, such as sexual offences, child abuse offences or murder, where they were committed outside of a domestic relationship. Offences that cannot be disclosed under the NSW scheme include offences from jurisdictions outside NSW, offences where no conviction has been recorded, spent convictions, juvenile convictions, Apprehended Domestic Violence Orders and any other offence not listed in the relevant offences list.

SAPOL is of the view that any initiative which increases awareness and safety for victims, particularly in a preventative capacity, is worthy of favourable consideration. However, SAPOL has some reservations relative to the NSW pilot model and its restricted criteria for information release. The NSW DVDS will not disclose convictions for offences which have occurred outside of NSW, offences where no conviction is recorded, spent convictions, juvenile convictions, or the presence of an order (unless there are breaches).

In the view of SAPOL, this approach leaves significant gaps in information sharing as offences which have not resulted in a conviction are not identified in this process. Similarly, other contextual factors which may place a victim at higher risk (for example, misuse of alcohol or other drugs and mental health issues) would not be revealed.

SAPOL has noted that if the disclosure parameters were broadened, it would increase victim safety but would come at a resourcing cost (noting that the model is resource intensive for police). SAPOL also noted that it is unknown, at this early stage of the NSW pilot, how many applications may be received. In addition to the work generated by the application process which includes a risk assessment process, it is highly likely that disclosures will be made to in a face-to-face meeting. This in turn would generate further work in both supporting victims and investigating offences.

The disclosure of information by Government agencies in South Australia is governed by the Information Privacy Principles and the Information Sharing Guidelines. An agency may disclose personal information about a person to a third party in a number of circumstances including where the disclosure is required or authorised by, or under, law and if the person disclosing the information believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious threat to the life, health or safety of a person.

The question of what information should be able to be disclosed requires careful consideration. Disclosure of all offences may not be necessary or proportionate and could undermine an individual’s basic right to privacy. A similar issue arises in relation to the disclosure of intervention orders. An intervention order is a civil order that does not require a finding of guilt by a court that the alleged perpetrator has committed a criminal offence. Indeed, an intervention order can be made by mutual consent without any admissions by the defendant as to the matters in issue. A breach of an intervention order, on the other hand, is a criminal offence.

Careful attention should therefore be given to the question of whether the disclosure of information should be limited to prior convictions for relevant criminal offences (for example, domestic violence offences, sexual offences and some offences against the person that involve violence) or whether the threshold should be wider? Should it include intervention orders and/or charges or allegations relating to relevant offences?

In the UK, a two-stage process is adopted in the DVDS. The first step is to determine whether there is a need for the disclosure in order to prevent abuse or serious harm. The second step requires consideration of the legal principles discussed above.

In discussing confidentiality the paper indicates

In South Australia, counselling and medical records can be called upon as evidence during legal proceedings. This applies to domestic violence counselling.

There are two circumstances in which communications are protected under the law from being disclosed in legal proceedings:

• communications that occur between a lawyer and their client 

• communications that occur during counselling relating to sexual assault. This protection cannot be waived, even if both the victim and the counsellor agree to it being disclosed.

Should changes be made to improve the confidentiality in court of medical and counselling records?

It comments

[T]he SDC recommended the Attorney-General amend the Evidence Act 1929 (SA) to improve confidentiality of client records for victims of domestic and family violence.

The issue of confidentiality of client case records concerning victims of domestic violence was also raised in evidence before the SDC. The example given was a defamation action taken in the small claims court, by an alleged perpetrator, against a domestic violence service who held sensitive and confidential case notes containing information provided by the victim. The agency settled the action at significant cost on the understanding that, if the action was defended, information contained in the case notes would be required to be released to the plaintiff (the perpetrator) in the discovery process. Under the common law, the only relationship in which communications are protected from disclosure in court is that between a lawyer and a client. There is no general client privilege that protects counselling records from disclosure. The confidentiality of counselling records is therefore limited, as access to these records can be requested in relation to legal proceedings under subpoena. Agencies could argue that disclosure of the notes would be prejudicial to the client if revealed in court or that it would otherwise be contrary to the interests of justice to admit the document in evidence. It would then be up to the court to determine whether or not the records should be admitted into evidence.

What we have currently in South Australia is a protection for sexual assault counselling communications. Part 7, Division 9 of the Evidence Act 1929 (SA) provides that “a communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity”. This protection cannot be waived, even if the counsellor or the victim agree to its disclosure. Section 67F further provides that evidence of a protected communication is entirely inadmissible in committal proceedings, is not liable to discovery or any other form of pre-trial disclosure and cannot be admitted in other legal proceedings unless the court gives permission and the admission of the evidence is consistent with any limitations or restrictions fixed by the court.

There is no general privilege currently in South Australia for medical records or other records produced where there is a duty of confidentiality, or an expectation of confidentiality by the victim. Whether or not some form of client privilege should apply, either generally, or limited to domestic violence counselling records, therefore requires careful consideration.

Community and expert views are sought on whether amendments to the Evidence Act 1929 (SA) are warranted to improve confidentiality for client records for domestic violence victims.

Apologies

The Tasmanian Attorney-General has announced that the state Government will introduce legislation in 2016 to expunge historic criminal records for consensual homosexual sexual activity.

The announcement indicates that

The Tasmanian Liberal Party, both in Opposition and in Government, has supported expunging historic criminal records for homosexual activity which was previously illegal.

Additionally, a formal apology to those affected, including families and loved ones of those who are deceased, will be made when the legislation is introduced in the house.

The legislation will expunge convictions for the following offences:

Section 122(a) – sexual intercourse against the order of nature;

Section 122(c) – consensual sexual intercourse between males; and

Section 123 – indecent practices between males.

These sections of the Tasmanian Criminal Code were repealed in 1997 after homosexuality was decriminalised in Tasmania but the repeal did not address the implications for those with existing criminal records pertaining to consensual homosexual activity.

The legislation will ensure that any individual prosecuted under these offences will no longer suffer distress or be disadvantaged by a criminal record in relation to travel, employment, and volunteering.

The legislation will also allow other offences under which people may have been charged for consensual homosexual activity to be added by regulation at a later date so these historical offences can also be expunged from a person’s criminal record.

I thank the Anti-Discrimination Commissioner for her report titled ‘Treatment of historic records for consensual homosexual sexual activity and related conduct’, which has helped to progress this important issue.

The Government has approved some variations from the model for expunging offences proposed by the Anti-Discrimination Commissioner, in order to allow us to implement legislation and open the scheme to expunge offences as efficiently and as soon as possible.

Rather than requiring the establishment of a Historic Criminal Records Expert Panel as proposed by the Commissioner, applications will be processed through the Secretary of the Department of Justice, consistent with how other jurisdictions manage this process.

The Anti-Discrimination Commissioner's April 2015 report [PDF] has the following recommendations

R1 A dedicated scheme is established to enable historic criminal and related records relating to homosexual activities or activities arising because of a person’s diverse sexual orientation or gender identity to be expunged.

R2 All criminal and related records arising from consensual sexual activity and related conduct in situations where the applicant would not have been dealt with by police but for the fact that the applicant was suspected of engaging in sexual activity of a homosexual nature or because of their sexual orientation or gender identity are covered by the scheme, including:

(a) historic criminal records arising in relation to sections 122(a) and (c), and 123 of the Criminal Code involving consensual sexual activity;

(b) historic criminal records arising in relation to other repealed offences used to prosecute activity of a homosexual nature or because of a person’s sexual orientation or gender identity;

(c) historic criminal records arising in relation to associated offences where the applicant would not have been charged but for the fact that the applicant was being dealt with in relation to engaging in conduct of a homosexual nature or their sexual orientation or gender identity;

(d) historic criminal records related to any other offence by which homosexual and perceived homosexual conduct or conduct related to a person’s sexual orientation or gender identity could be punished that do not represent an offence under current law or with which a person could still be charged where a record would not have been arisen but for the fact that the applicant was suspected of engaging in sexual activity of a homosexual nature; and

(e) historic criminal records related to any offence of attempting, conspiring or inciting to commit any of the offences outlined above

R3 The scheme have the capacity for the expunction of historic criminal records of persons of diverse sexual orientation or gender identity in all circumstances where the conduct was otherwise lawful for those in the broader community.

R4 The scheme has the capacity for the expunction of historic criminal records for offences that took place in association with the primary offence and/or records for inchoate offences relating to the primary offence.

R5 Where age is relevant to consideration of whether an act is eligible to be permanently disregarded, the test to be used is whether the same behaviour between males and females would be considered lawful or unlawful in the circumstances.

R6 Any conviction of a young person (and related records), in circumstances where they were the subject of non-consensual sexual abuse by an older person, also be eligible to be permanently disregarded.

R7 The scheme enable a spouse, domestic partner, child, parent, sibling, personal representative or other appropriate representative to seek the posthumous expunction of relevant historic criminal records.

R8 The Government consider issuing a formal apology to those who have suffered because of actions by authorities resulting in a historic criminal record and to the family and loved ones of those who are deceased.

R9 The Government seek the grant of a royal pardon to deceased persons who were convicted under relevant sections of the Tasmanian Criminal Code and other Tasmanian or colonial laws who, as a result of the time that has elapsed since their death, no longer have a spouse, domestic partner, child, parent, sibling or personal representative to make application for a conviction to be disregarded.

R10 Legislation be prepared to establish a dedicated scheme to enable historic criminal records to be expunged with the effect of:

(a) restoring all legal rights as if the historic criminal record had not been made;

(b) providing the right of non-disclosure of all expunged records under all circumstances;

(c) separating all expunged criminal and related records (and all references to them) from a person’s criminal and other records and empowering the Registrar to have custody of those records;

(d) destroying all duplicates of all expunged relevant criminal and other records;

(e) ensuring that the applicant’s privacy and that of any other relevant person are respected; and

(f) prohibiting the disclosure of any information relating to the conviction or related material.

R11 A Historic Criminal Records Expert Panel (HCREP) be established comprising the Anti-Discrimination Commissioner, the Registrar under the Working with Vulnerable People Act 2013 and the Dean of Law at the University of Tasmania. The Panel be authorised authority to make decisions, including binding orders, on applications for expunction of relevant records.

R12 The Anti-Discrimination Commissioner be appointed as Registrar of the scheme.

R13 The Historic Criminal Records Expert Panel be empowered to request and receive all record s considered relevant to assessing an application.

R14 A person who believes they have a historic criminal record that should be permanently disregarded be required to complete an application form, providing details of relevant records and offences, including information relating to the incidents leading to the conviction or other police action.

R15 The application form should authorise the conduct of a police record search and consent to access any other relevant records.

R16 The Registrar be authorised to provide the applicant with access to any records on the basis that any information contained within the records related to the identity or personal details of any person other than the applicant not to be disclosed.

R17 It be an offence to knowingly give the Historic Criminal Records Expert Panel false or misleading information.

R18 If the Historic Criminal Records Expert Panel is satisfied that an order to permanently disregard a historic criminal record was based on false or misleading information or documents that are false or misleading, the Historic Criminal Records Expert Panel be empowered to determine that the historic criminal record is no longer to be disregarded and the record reinstated; with such decisions to be subject to the same review rights as a decision not to order a record be permanently disregarded.

R19 Information provided to the Historic Criminal Records Expert Panel as part of the application and during subsequent investigation not be capable of being used in any proceedings for perjury or similar offences related to statements or evidence given at the time of the original offence.

R20 Decisions to expunge relevant records be binding on all authorities.

R21 A decision that a historic criminal record is not eligible to be disregarded or to reinstate a permanently disregarded record be reviewable by a magistrate in private session under amended provisions of the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas).

R22 Relevant authorities are required to notify the record holder prior to decision or the release of information for other purposes where a record is identified that may be eligible to be expunged. This includes procedures for the conduct of police record checks and the assessment of applications for registration under the Registration to Work with Vulnerable People Act 2013 (Tas).

R23 An order for expunction is to apply to all government records, including official police records, general police records, court documents and general government records.

R24 Expunged historic records be permanently held by the Registrar of the scheme, with all remaining records to contain no indication of the nature of the amendment.

R25 Secondary records or duplicate files held in paper or electronic format related to historic criminal records that are to be expunged should be destroyed.

R26 Where the Historic Criminal Records Expert Panel has ordered that a record be expunged, disclosure of information regarding that record be an offence carrying a  serious penalty and the mechanism for investigation and prosecution of such an offence is specified clearly in the legislation.

R27 The Attorney General liaise with the Attorneys General of the Commonwealth and other states and the territories to establish a mechanism for the identification and expunction of all relevant records that have been pro vided to or received from another jurisdiction.

R28 Consequential amendments be made to the Archives Act 1983 (Tas) to give effect to the intent of the scheme.

R29 The definition of ‘irrelevant criminal record’ in section 3 of the Anti-Discrimination Act 1998 (Tas) be amended to included records expunged under the scheme.

R30 Consequential amendments be made to the Annulled Convictions Act 2003 (Tas) and related legislation to provide for the non-disclosure of expunged historic criminal records.

R31 The Registration to Work with Vulnerable People Act 2013 (Tas) be amended as necessary to prohibit consideration of any records expunged under the scheme.

R32 The Registrar of the scheme have authority to release expunged records in specific circumstances.

R33 Arrangements are established to enable, including through an application costs reimbursement mechanism, necessary assistance to be provided to applicants by Community Legal Centres in Tasmania together with bodies in other states and territories such as the Human Rights Law Centre and the Public Interest Advocacy Centre.

R34 Additional resources are made available to the Anti-Discrimination Commissioner to cover the one-off establishment activities for the scheme and the ongoing administrative, investigative and communication activities

Sharing

From the explanatory memo to the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 (Cth), which features provisions regarding vetting and information sharing -

1. This Bill amends the Proceeds of Crime Act 2002 (POC Act), Criminal Code Act 1995 (Criminal Code), Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act), and the AusCheck Act 2007 (AusCheck Act).

2. The Bill contains a range of measures to improve and clarify Commonwealth criminal justice arrangements, including:

• · amending the POC Act to clarify the operation of the non-conviction based proceeds of crime regime in response to recent court decisions 

• · amending the Criminal Code to insert two new offences of false dealing with accounting documents ï‚· amending the serious drug offences in Part 9.1 of the Criminal Code to clarify the definitions of the terms 'drug analogue' and 'manufacture' and ensure that they capture all relevant substances and processes 

• · clarifying and addressing operational constraints identified by law enforcement agencies with the AML/CTF Act, and expanding the list of designated agencies authorised to access AUSTRAC information to include the Independent Commissioner Against Corruption of South Australia 

• · clarifying and extending the circumstances under which AusCheck can disclose AusCheck background check information to the Commonwealth and to state and territory government agencies performing law enforcement and national security functions. 

4. Schedule 1 will amend the POC Act to clarify the operation of the non-conviction based confiscation regime provided under that Act.

5. The non-conviction based forfeiture scheme is an essential tool under the POC Act, which is designed to target those who distance themselves from commission of offences, but profit as a result of illegal activity. Under the POC Act, a proceeds of crime authority (the Commissioner of the Australian Federal Police or the Commonwealth Director of Public Prosecutions) may apply to restrain property reasonably suspected of being the proceeds of crime, without requiring any person to be charged. The restrained property may later be forfeited if the court is satisfied on the balance of probabilities that the property is proceeds of crime.

6. The non-conviction based scheme operates in addition to the conviction-based forfeiture scheme. Section 319 of the POC Act provides that the fact that criminal proceedings have been instituted or have commenced (whether or not under the POC Act) is not a ground on which a court may stay proceedings under this Act that are not criminal 2 proceedings. This reflects the Parliament's intention that the non-conviction based scheme could operate even where criminal proceedings are on foot.

7. The measures in Schedule 1 of the Bill address issues relating to the non-conviction based forfeiture scheme raised in two court decisions - Commissioner of the Australian Federal Police v Zhao [2015] HCA 5 ('Zhao and Jin') and In the matter of an application by the Commissioner of the Australian Federal Police [2015] VSC 390 ('Zhang').

8. Schedule 1 of the Bill contains amendments to the POC Act following these decisions to: ï‚· clarify the principles a court may consider when granting an application for a stay of proceedings under the POC Act, including providing grounds on which a stay is not to be granted ï‚· strengthen protections against disclosure and use of material related to the confiscation proceedings in subsequent criminal proceedings ï‚· clarify that where an exclusion application has been made pursuant to Division 3 of Part 2-1 (dealing with restraining orders) of the POC Act, this application must be heard and finalised prior to the hearing of a forfeiture application.

9. Schedule 2 will amend the Criminal Code to create two new offences of false dealing with accounting documents. These offences implement Australia's obligation as a party to the Organisation for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention). Article 8 of the Convention requires parties to create offences of false accounting for the purposes of concealing or enabling bribes to a foreign public official.

10. The two new offences are inserted in a new Division of the Criminal Code titled 'Division 490-False dealing with accounting documents', in a new Part titled 'Part 10.9- Accounting records'. The first of the two new offences, at section 490.1 of the Criminal Code, applies where a person makes, alters, destroys or conceals an accounting document, or where a person fails to make or alter an accounting document that the person is under a duty to make or alter, with the intention that the person's conduct would facilitate, conceal or disguise the receiving or giving of a benefit that is not legitimately due, or a loss that is not legitimately incurred. The second offence, at section 490.2, applies in the same circumstances as the first offence, but where the person is reckless as to whether the benefit or loss would arise.

11. Schedule 2 provides for penalties proportionate to the differing fault element structure of each offence. The offence at section 490.1 imposes a maximum penalty for an individual of 10 years' imprisonment, a fine of 10 000 penalty units ($1.8 million), or both. The maximum penalty for a body corporate is the greater of: (a) 100 000 penalty units ($18 million); (b) (where the court can determine the value of the benefit) three times the value of the benefit obtained by the body corporate and any related body corporate from the offence; and (c) (where the court cannot determine the value of the benefit) 10 per cent of the annual turnover of the body corporate during the 12 months ending at the end of the month during which the conduct constituting the offence occurred. For the second offence, at section 490.2, to which the lower fault element of recklessness attaches, the penalties are half of the penalties for the offence at section 490.1. 3

12. The offences will apply both within Australia and overseas, in prescribed circumstances where constitutional power permits. Section 490.6 provides that it is necessary to seek the Attorney-General's consent to commence proceedings where the alleged conduct occurs outside Australia and where the alleged offender is not an Australian citizen, an Australian resident or a body corporate incorporated by or under a law of the Commonwealth or of a state or territory. This requirement to seek the Attorney-General's consent seeks to ensure that, in circumstances where the nexus between the offending conduct and Australia may not be obvious, the Attorney-General is given the opportunity to review relevant considerations concerning international law and comity prior to deciding at his or her discretion whether to consent to the commencement of proceedings. It is intended that the Office of International Law in the Attorney-General's Department would be consulted prior to seeking the Attorney-General's consent.

13. Schedule 3 will amend the serious drug offences in Part 9.1 of the Criminal Code to clarify the definitions of the terms 'drug analogue' and 'manufacture' and ensure that they capture all relevant substances and processes. The Schedule makes make two amendments to the definition of 'drug analogue' in section 301.9 of the Criminal Code.

14. First, it clarifies that the terms 'addition' and 'replacement' have their ordinary meaning, not their scientific meaning. This change is necessary to remove ambiguity in the section and ensure that it operates to capture all substances that are structurally similar to listed controlled and border controlled drugs.

15. Secondly, the Schedule clarifies that a substance will be a drug analogue of a listed controlled drug even if that substance is also listed as a border controlled drug (and vice versa). These amendments are necessary to remove ambiguities in the section, highlighted by the decision of the ACT Supreme Court in R v Poulakis (No. 3) [2015] ACTSC 191.

16. The Schedule also amends the definition of the term 'manufacture' in section 305.1 to ensure that it applies to processes where a substance is converted from one form into another, but which do not necessarily create a new substance or change the chemical structure of the substance. These changes are necessary to remove ambiguities in the definition, highlighted by the decision of the Victorian Court of Appeal in Beqiri v R (2013) 37 VR 219.

17. Schedule 4 will amend the AML/CTF Act to clarify and address operational constraints identified by law enforcement agencies, and enable a wider range of designated officials and agencies to access and share information obtained under the AML/CTF Act. These amendments will:

• · list the Independent Commissioner Against Corruption of South Australia (ICAC SA) as a 'designated agency' under section 5 of the AML/CTF Act, which will enable it to access AUSTRAC information (subject to the requirements of section 126 of that Act) 

• · enable the AFP and the ACC to share AUSTRAC information with the International Criminal Police Organisation (INTERPOL) and the European Police Office (Europol), and provide for a regulation-making power to enable additional international bodies to be prescribed in future 

• · clarify the circumstances in which entrusted investigating officials of the Australian Federal Police (AFP), the Australian Crime Commission (ACC), the Department of  Immigration and Border Protection (DIBP), and the Australian Commission for Law Enforcement Integrity (ACLEI) may disclose information obtained under section 49 of the AML/CTF Act.

The AusCheck amendments are described thus -

18. Schedule 5 will make amendments to Part 1 and Division 1 of Part 3 of the AusCheck Act to clarify and extend the circumstances under which AusCheck can share AusCheck scheme personal information. Specifically, the amendments in Schedule 5 will enable AusCheck to directly share AusCheck scheme personal information with a broader range of Commonwealth agencies and with state and territory government agencies performing law enforcement and national security functions.

19. AusCheck scheme personal information is defined in subsection 4(1) of the AusCheck Act and includes information relating to an individual's identity and information obtained as a result of an AusCheck national security background check. The purpose of these amendments is to support Commonwealth and state and territory agencies performing law enforcement and national security functions by providing access to AusCheck scheme personal information, as appropriate.

20. AusCheck is a branch within the Attorney-General's Department (AGD) that provides national security background checking services for the Aviation Security Identification Card (ASIC), Maritime Security Identification Card (MSIC), and National Health Security (NHS) check regimes. This background check is intended to identify individuals who should not be allowed access to secure areas of Australia's airports or seaports or to security sensitive biological agents (SSBA). A background check, defined in section 5 of the AusCheck Act, is an assessment relating to an individual's identity, criminal history, security assessment, and citizenship status, residency status or entitlement to work in Australia. Background checks are conducted under the Aviation Transport Security Act 2004 (ATSA), the Maritime Transport and Offshore Facilities Security Act 2003 (MTOFSA), or other primary legislation or legislative instruments.

21. AusCheck undertakes background checking activities within a legislative framework comprising the AusCheck Act and the AusCheck Regulations 2007 (AusCheck Regulations). This framework is supported by Guidelines for Accessing Information on the AusCheck Database (AusCheck Guidelines).

22. AusCheck uses information provided by an applicant for an ASIC, MSIC or NHS clearance to request a security assessment from the Australian Security Intelligence Agency (ASIO), a criminal history check from CrimTrac (which accesses all state and territory criminal convictions) and, if necessary, a citizenship status check from the Department of Immigration and Border Protection. Providing a centralised government background checking mechanism for these sectors means that private organisations and industry bodies do not need to deal with sensitive information, including personal and criminal history information. The vast majority of AusCheck activities relate to the ASIC and MSIC schemes, which are established under the Aviation Transport Security Act 2004 and Maritime Transport and Offshore Facilities Security Act 2003. The Department of Infrastructure and Regional Development (Infrastructure) administers these schemes.

23. The information handling provisions in AusCheck's legislative framework are primarily addressed at obtaining, using and disclosing information for purposes connected to background checking. There is some scope for information sharing for other purposes-- section 14(2)(b)(ii) and (iii) allow AusCheck to use or disclose information in responding to a 5 national security incident and for law enforcement or security intelligence purposes by the Commonwealth, or by Commonwealth authorities with law enforcement or national security functions.

24. AusCheck is limited in its ability to share AusCheck Scheme personal information. Currently, AusCheck can share with Commonwealth and relevant Commonwealth authorities (bodies incorporated) with functions relating to law enforcement or national security. These restrictions limit the flow of relevant information to other Commonwealth agencies dealing with national security and crime threats. They also prevent AusCheck from sharing relevant information with Commonwealth agencies which are not traditionally considered to be law enforcement agencies but which may require access to the information for law enforcement or national security purposes. AusCheck is also unable to directly share information with state and territory agencies with functions relating to law enforcement or national security, including state and territory police. These restrictions are at odds with the significant role these agencies play in law enforcement and national security, and the collaborative approach that is necessary to combat the cross-border threats of terrorism and serious crime. This also causes particular challenges for agencies that undertake law enforcement and national security operations at secure airport and maritime port areas, such as state and territory led police taskforces targeting drug importation.

25. In order to address these challenges and support the efforts of agencies performing law enforcement and national security functions, Schedule 5 to the Bill amends the AusCheck Act to enable AusCheck to directly share information with state and territory authorities and with a broader range of Commonwealth authorities. This sharing will continue to be limited to the performance of functions relating to law enforcement or national security, and be subjected to strong safeguards.

Safeguards

26. Appropriate safeguards are in place to protect the disclosure of AusCheck scheme personal information under the AusCheck Act.

27. Criminal offences are included in section 15 of the AusCheck Act which makes it an offence to unlawfully disclose AusCheck scheme personal information. An offence under this section is punishable by up to two years' imprisonment. These offences provide additional protections for information obtained by AusCheck and create an obligation on AusCheck staff to ensure information is shared appropriately at all times.

28. AusCheck issues privacy notices to applicants advising them how their information will be used and to acquire consent for the collection and disclosure of their personal information. Each applicant receives a privacy notice and the privacy policy is also published on the AusCheck web page of the AGD website.

29. The Secretary of the AGD issues the AusCheck Guidelines under regulation 15 of the AusCheck Regulations which establish a compulsory framework for AusCheck staff to consider in determining the legality of requests for personal information under subparagraph 14(2)(b)(iii) of the AusCheck Act. The AusCheck Guidelines implement recommendation 46 of the AusCheck Privacy Impact Assessment for the development of a protocol relating to the disclosure of AusCheck scheme personal information.

30. The AusCheck Guidelines are developed in consultation with agencies that will be receiving information, to ensure appropriate contact officers and authorisations are in place. The AusCheck Guidelines are published on the AusCheck webpage. They require Commonwealth agencies seeking access to AusCheck scheme personal information to be a 'recognised Commonwealth authority' or accredited as an 'authority to use information for law enforcement and national security purposes'. In order to be accredited, agencies must provide information to AusCheck establishing its law enforcement or national security functions and legislative or other authority supporting this function. Information is only shared with nominated Senior Executives, and written undertakings outline the law enforcement or national security purposes for the information.

31. The AusCheck Guidelines will continue to apply how information is shared with Commonwealth authorities under subparagraph 14(2)(b)(iii).

32. To ensure appropriate accreditation and protections for information shared with state and territory authorities under new subparagraph 14(2)(b)(iiia), state and territory authorities will also be subject to AusCheck Guidelines established under regulation 15 of the AusCheck Regulations.

33. AusCheck has memoranda of understandings (MOUs) in place with relevant authorities that set out the key principles and obligations relating to the sharing of AusCheck scheme personal information. The MOUs outline the purposes for which AusCheck information may be shared, and place obligations on receiving agencies to manage and control access to AusCheck information at all times so as to protect the privacy of individuals and the confidentiality of the information received.

34. These safeguards will continue to apply to information disclosed under new subparagraphs 14(2)(b)(iii) and (iiia) to ensure AusCheck scheme personal information is only accessed by Commonwealth, state and territory agencies performing law enforcement or national security functions, and this information is dealt with appropriately within these receiving agencies. Agencies that receive AusCheck scheme personal information are also required to comply with all relevant privacy, recordkeeping, records disposal, auditing and reporting requirements.

Delinquency Dataveillance

'Databasing Delinquency' by Kevin Lapp in Hastings Law Journal (Forthcoming) comments

For over a century, legislatures and officials have restrained the criminal justice system’s ability to collect information about youth. Databasing Delinquency explains how juveniles now find themselves indefinitely cataloged in sex offender registries, gang databases, and DNA databases. It documents the unprecedented breadth and permanence of law enforcement and court record-keeping. And it shows how schools have become mandated law enforcement informants. Moreover, services both public and private make this information available to law enforcement nationwide, employers, government agencies, colleges and the general public.

The expansion of this modern culture of “dataveillance” to youth has profound implications. It not only harms individual youth in permanent and stigmatizing ways, it reshapes the very meaning of childhood. Putting the developmental characteristics of youth, and childhood, at the center of the analysis, the article reveals the incoherence and destructiveness of databasing delinquency. Mindful of the public safety benefits and inevitability of law enforcement information gathering, the article calls for limits on the amount of information that the criminal justice system can gather, store and share about juveniles. This would add appropriate restraints so that public safety gains from databasing do not come at the expense of juvenile privacy, juveniles’ life chances, or childhood itself.

NSW Parole Regime Reform

The NSW Law Reform Commission has made the following recommendations in its report on the state's parole system -

2. Purpose of parole and design of the parole system

2.1: Retention of parole - Parole should be retained.

2.2: Statement of the primary purpose of parole

(1) The Crimes (Administration of Sentences) Act 1999 (NSW) should include a statement of the purpose of parole along the following lines: The primary purpose of parole is to promote community safety by supervising and supporting the conditional release and re-entry of prisoners into the community, thereby reducing their risk of reoffending.

(2) The Crimes (Administration of Sentences) Act 1999 (NSW) should make clear that parole remains part of the sentence. Such a statement should be located near the new provision that states the purpose of parole.

2.3: A mixed parole system

The Crimes (Administration of Sentences) Act 1999 (NSW) should retain the current mixed parole system where automatic parole applies to offenders serving head sentences of three years or less that have a nonparole period and discretionary parole applies to offenders serving sentences of more than three years.

3. Statutory parole

3.1: Introducing a statutory parole model

(1) The Crimes (Administration of Sentences) Act 1999 (NSW) should provide that an offender sentenced to a head sentence of three years or less with a non-parole period must be released on parole at the end of the non-parole period (“statutory parole”), unless the State Parole Authority has revoked parole.

(2) Statutory parole should be subject to the standard conditions of parole set out in Recommendation 9.1.

(3) The Authority should have the same power to impose any additional conditions as it currently has for court based parole orders.

(4) The statutory parole model should replace the court based parole order model in the Crimes (Sentencing Procedure) Act 1999 (NSW).

3.2: Pre-release revocation of statutory parole

(1) The Crimes (Administration of Sentences) Act 1999 (NSW) should provide that the State Parole Authority may revoke statutory parole (or a court based parole order if court based parole is retained) before an offender is released on parole. This should replace the current cl 222(1) of the Crimes (Administration of Sentences) Regulation 2014 (NSW).  

(2) The Authority may revoke such parole if: (a) the Authority is satisfied that the offender’s conduct in custody indicates that the risk that the offender would pose to community safety if released on parole outweighs any reduction in risk likely to be achieved through parole supervision of the offender, or (b) the Authority is satisfied that, if released on parole, the offender would pose a serious and immediate risk to his or her own safety, or (c) the Authority is satisfied that satisfactory accommodation or postrelease arrangements have not been made or cannot be made and the risk to community safety posed by the offender’s release on parole outweighs any reduction in risk likely to be achieved through parole supervision of the offender, or (d) the offender requests that the order be revoked.

(3) Corrective Services NSW should develop and publish a robust policy for assessing the suitability of offenders’ proposed post-release accommodation. The policy should focus on risk to community safety and be grounded on the available evidence about the extent to which different types of restrictions on the places offenders may live can reduce the risk of reoffending.

(4) When an offender’s proposed post-release accommodation is assessed as unsuitable, Community Corrections should clearly communicate the reasons for this assessment to the offender or the offender’s legal representative.

(5) Corrective Services NSW should amend its policy to make clear that Community Corrections officers should seek pre-release revocation on the basis of an offender’s accommodation situation only if the absence of arrangements for suitable accommodation indicates that the risk to community safety posed by the offender’s release on parole outweighs any reduction in risk likely to be achieved through parole supervision of the offender.

(6) Corrective Services NSW should evaluate the provision of postrelease accommodation under the Funded Partnership Initiative. The evaluation should assess whether the level of post-release accommodation is adequate to meet requirements.

3.3: Parole for accumulated sentences 

(1) When an offender is sentenced for multiple offences, the effective length of the overall head sentence (whether an aggregate sentence or accumulated sentences) should be used to determine whether the offender should be subject to statutory parole (or court based parole, if retained) or discretionary parole.

(2) In the case of accumulated sentences, where the effective length of the overall head sentence is three years or less: (a) there should be a single date for release on parole that corresponds with the end of the last operative non-parole period (if statutory parole is implemented); or (b) the court should make a parole order that requires release on parole at the end of the last operative non-parole period (if court based parole is retained).

4. Factors guiding the State Parole Authority’s decisions

4.1: Replacing the public interest test

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended to the following effect: The State Parole Authority may make a parole order for an offender if it is satisfied that making the order is in the interests of community safety. In doing so, the Authority must take into account: (a) the risk to community safety of releasing the offender on parole (b) whether parole supervision is likely to aid in reducing the possibility of the offender reoffending (c) the risk to community safety if the offender is released at the end of the sentence without a period of parole supervision, or is released at a later date with a shorter period of parole supervision, and (d) the extent to which parole conditions can mitigate any risk to community safety during the parole period.

4.2: Mandatory considerations

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended so that when the State Parole Authority is making a decision in accordance with Recommendation 4.1 it is required to consider: (a) the nature and circumstances of the offence to which the offender’s sentence relates (b) any relevant comments made by the sentencing court (c) the offender’s criminal history (d) the likelihood that the offender, if released, will reoffend, and the likely seriousness of any reoffending (e) the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole (f) any submissions from any registered victim (g) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of Community Corrections, as referred to in section 135A (h) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Serious Offenders Review Council, the Commissioner or any other authority of the State (i) if the Drug Court has notified the Authority that it has declined to make a compulsory drug treatment order in relation to an offender’s sentence on the ground referred to in section 18D(1)(b)(vi) of the Drug Court Act 1998 (NSW), the circumstances of that decision to decline to make the order, and (j) such other matters as the Authority considers relevant.

4.3: Clarifying the status of the State Parole Authority’s Operating Guidelines

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended to remove the requirement that guidelines under s 185A be developed “in consultation with the Minister”.

4.4: Content of Community Corrections reports

(1) Section 135A of the Crimes (Administration of Sentences) Act 1999 (NSW), which relates to the content of Community Corrections reports, should be moved to the Crimes (Administration of Sentences) Regulation 2014 (NSW).

(2) The new clause should require the pre-release report from Community Corrections to recommend for or against parole.

(3) The new clause should not require the report to address the likelihood of the offender adapting to normal lawful community life.

(4) The new clause should require the report to address any established breaches during a previous period on parole, a period of leave or a community based sentence.

(5) The new clause should require the report to address the offender’s participation in rehabilitation, education, work or other programs in prison. Where relevant, the report should also address the availability or unavailability of such programs and the offender’s willingness or unwillingness to participate.

4.5: The State Parole Authority’s use of risk assessment results

(1) The Community Corrections pre-release report should include the results of any evidence based risk assessment tool used by Corrective Services NSW to assess the offender.

(2) The State Parole Authority members’ professional development program should include training in the value, uses and limitations of risk assessment tools, particularly the Level of Service Inventory-Revised (LSI-R).

(3) The requirement in the Authority’s Operating Guidelines that an offender must generally be assessed as low risk before being granted parole should be removed. Instead, the Operating Guidelines should emphasise that risk assessment results should be given weight in accordance with the legislative framework for assessing release on parole set out in Recommendations 4.1-4.4.

4.6: The State Parole Authority’s consideration of security classification

The State Parole Authority’s Operating Guidelines should provide that if an offender has failed to achieve a low level of prison classification, the Authority should, when considering whether to grant parole, take into account: (a) any reasons for the failure to achieve a low level of prison classification, and (b) that an offender with a higher level of prison classification, who otherwise meets the requirements for a grant of parole, could still be regarded as suitable for parole.

4.7: The State Parole Authority’s approach to in-custody rehabilitation programs

The State Parole Authority’s Operating Guidelines should be amended to the following effect: (a) Where an offender has not completed a recommended in-custody rehabilitation program for reasons beyond his or her control, the Authority should not take those reasons into account.   (b) The Authority should take into account an offender’s participation (or lack of participation) only in those programs likely to reduce that particular offender’s reoffending risk, or that prepare offenders to participate in those programs. (c) The Authority should take program participation into account on a case by case basis when making the parole decision. (d) The Authority should consider whether the offender could, without increased risk to the community, complete a recommended program in the community.

4.8: The State Parole Authority’s consideration of external leave participation

The State Parole Authority’s Operating Guidelines about serious offenders or other long term inmates having failed to participate in prerelease external leave should be amended to the following effect: (a) The presumption that serious offenders and other long term inmates should have undertaken pre-release external leave should be removed. (b) In deciding what weight to give to the failure, the Authority should take into account: (i) whether the failure was for reasons beyond the offender’s control, and (ii) whether the offender’s participation in other preparatory or transitional options would be sufficient to prepare the offender for parole.

4.9: Assessing the necessity and suitability of post-release accommodation

Where suitable accommodation is not available for an offender:

(1) Corrective Services NSW policy should state that Community Corrections should comment in the pre-release report on whether such accommodation is necessary to supervise the offender adequately and manage any risk to community safety that the offender poses.

(2) The State Parole Authority’s Operating Guidelines should state that the offender may be released on parole if any risk to community safety can be managed and Community Corrections can provide adequate supervision.

4.10: Parole for offenders likely to be deported

(1) The Crimes (Administration of Sentences) Act 1999 (NSW) should provide that, when considering parole for an offender who may be subject to deportation if released on parole, the State Parole Authority must take into account: (a) the likelihood that the offender will be deported when released on parole, and (b) the risk to community safety in any country the offender may travel to during the parole period if deported.

(2) The current list in the Authority’s Operating Guidelines of factors that the Authority must consider in deportation cases should be deleted.

5. Parole decision making for serious offenders

5.1: Power to declare an offender a “serious offender”

(1) The Crimes (Administration of Sentences) Act 1999 (NSW) should expressly authorise the Commissioner of Corrective Services to declare an offender to be a serious offender and the definition of “serious offender” in s 3(1) of the Act should be amended accordingly.

(2) The definition of “serious offender” in s 3(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) should be amended by deleting paragraph (d) which refers to an offender being managed as a serious offender in accordance with a decision of the sentencing court, State Parole Authority or the Commissioner.

5.2: Referring high risk sexual and violent offenders to the Serious Offenders Review Council

(1) Corrective Services NSW should develop a policy to identify those sexual and violent offenders who are likely candidates for an application under the Crimes (High Risk Offenders) Act 2006 (NSW).

(2) The Commissioner of Corrective Services should declare such offenders to be serious offenders as early in their sentences as is possible.

5.3: Offenders serving redetermined life sentences – repeal of s 154 and s 199

Sections 154 and 199 of the Crimes (Administration of Sentences) Act 1999 (NSW) should be repealed.

5.4: Matters the Serious Offenders Review Council should take into account when making recommendations to the State Parole Authority

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended so that, when reporting to and advising the State Parole Authority, the Serious Offenders Review Council must have regard to the considerations that the Authority takes into account when it makes a parole decision.

5.5: The Serious Offenders Review Council’s recommendation to the State Parole Authority

Section 135(3) of the Crimes (Administration of Sentences) Act 1999 (NSW) should be redrafted to state that, except in exceptional circumstances, the State Parole Authority must not make a parole order for a serious offender unless the Serious Offenders Review Council advises that the offender should be released on parole.

5.6: Parole and the Crimes (High Risk Offenders) Act 2006 (NSW)

The Crimes (Administration of Sentences) Act 1999 (NSW) should state: (a) The State Parole Authority, in deciding whether to: (i) grant parole to an offender, or (ii) rescind a revocation of parole must not take into account the fact that an order under the Crimes (High Risk Offenders) Act 2006 (NSW) might be made regarding the  offender in future unless the State has made an application for such an order. (b) If the State has made an application under the Crimes (High Risk Offenders) Act 2006 (NSW) in relation to an offender, but the application has not yet been determined, the Authority may take the application into account. (c) If the Supreme Court has imposed an interim continuing detention order or a final continuing detention order under the Crimes (High Risk Offenders) Act 2006 (NSW) in relation to an offender, the Authority must not make a parole order, or rescind any revocation of the offender’s parole. (d) If the Supreme Court has imposed an interim supervision order or a final extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW) in relation to an offender, the Authority may take the existence of such an order into account.

6. A new parole decision making process

6.1: Redraft procedural provisions

The provisions of the Crimes (Administration of Sentences) Act 1999 (NSW) that set out the State Parole Authority’s decision making process (Part 6, Division 2, Subdivisions 2 and 3) should be entirely redrafted. The new provisions should more clearly and fully set out the decision making process that the Authority should follow.

6.2: A new parole decision making process

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended so that in deciding whether to grant or refuse parole, the State Parole Authority uses the following process:

(1) The Authority should notify any registered victim of the offender, the Commissioner of Corrective Services and the Attorney General that the offender is due to be considered for parole. The Authority should make arrangements with Corrective Services NSW to achieve this on a day to day basis.

(2) Registered victims, the Commissioner and the Attorney General should be able to lodge a “notice of interest” in the case. Any registered victim should also be invited to make a written submission for the Authority to take into account.

(3) The Authority should then consider the offender’s case at a private meeting and decide whether parole should be granted or refused.

(4) If the Authority decides to grant parole and no “notice of interest” has been lodged, it may make a parole order at the private meeting and impose such conditions as it may determine.

(5) If the Authority decides to grant parole and a “notice of interest” has been lodged, it should record its decision and list the case for a public review hearing.

(6) If the Authority decides to refuse parole at a private meeting, it should notify the offender, provide the offender with the documents on which its decision was based, and advise the offender of his or her right to apply for a review hearing. The offender should be able to make written submissions to the Authority as part of the application.  After it has considered the application, the Authority should list the case for a public review hearing only if it considers that a hearing is warranted. If the Authority does not consider that a review hearing is warranted, it should confirm the refusal and notify the offender.

(7) If the case is listed for a review hearing, the Authority should notify the offender and any party who has lodged a “notice of interest” in the case. The offender should be entitled to appear at the hearing, be legally represented, and make written and oral submissions. Any registered victim who has lodged a “notice of interest” should be entitled to appear and make written and oral submissions. If the Commissioner of Corrective Services or the Attorney General has lodged a “notice of interest”, the Commissioner or the Attorney General should be entitled to appear, be legally represented and make written and oral submissions.

6.3: The Serious Offenders Review Council’s role

(1) If the offender is a serious offender and the Serious Offenders Review Council has recommended against parole for the offender, the State Parole Authority should grant parole only in exceptional circumstances.

(2) If the Authority at a private meeting decides to grant parole to a serious offender against the Council’s advice: (a) The Authority should list the case for a public review hearing. (b) The Authority should provide the Council with reasons for its decision and allow at least 21 days before holding the hearing for the Council to respond in writing to the decision. (c) The Commissioner and the Attorney General should be notified of the hearing and have the right to appear, be represented and to make submissions, regardless of whether they have previously lodged a notice of interest.

(3) If, at a review hearing held to reconsider a decision to refuse parole, the Authority decides to grant parole to a serious offender against the Council’s advice: (a) The Authority should adjourn the hearing and provide the Council with its reasons for reversing the initial decision to refuse parole. (b) The Authority should give the Council at least 21 days to respond in writing before resuming the hearing. (c) The Commissioner and the Attorney General should be notified of the resumed hearing and have the right to appear, be represented and to make submissions, regardless of whether they have previously lodged a notice of interest.

6.4: Victim submissions at hearings

The State Parole Authority should ensure that a registered victim who has lodged a notice of interest is given sufficient opportunity to make oral submissions at any hearing, regardless of whether the Commissioner of Corrective Services or the Attorney General makes submissions opposing parole.

6.5: Commissioner and State submissions

(1) The Commissioner of Corrective Services and the Attorney General should have the right to make written submissions to the State  Parole Authority at any time when it is considering the parole of any offender until a final decision is made. The Authority must consider any such submission.

(2) A final decision by the Authority may be any of the following: (a) making a parole order (b) refusing to hold a review hearing (where parole has been refused at a private meeting) (c) confirming a refusal of parole because the offender has not applied for a review hearing, or (d) refusing parole at a review hearing.

(3) Corrective Services NSW should develop and publish a policy about the situations when the Commissioner should make a submission.

6.6: Revoking discretionary parole orders pre-release

(1) The Crimes (Administration of Sentences) Act 1999 (NSW) should provide that: (a) the State Parole Authority has the power to revoke its own parole order before the offender is released only if: (i) since the order was made, new information is available or the situation has materially changed such that the Authority considers it appropriate to revoke the order (ii) the Authority is satisfied that, if released on parole, the offender would pose a serious and immediate risk to his or her own safety, or (iii) the offender requests that the order be revoked. (b) the following procedures apply to proceedings for such a revocation: (i) the offender, the Commissioner of Corrective Services and the Attorney General may apply to the Authority to exercise this power (ii) applicants may make written submissions as part of the application (iii) the Authority should consider the application and decide whether to exercise the power in a private meeting (iv) if the Authority decides to exercise the power on application from the offender, the Authority should formally record a refusal of parole (v) if the Authority decides to exercise the power on application from the Commissioner or the Attorney General, the Authority should list the matter for a review hearing and notify the offender, the applicant and any party who has lodged a notice of interest, and (vi) at the review hearing, the Authority should consider whether to grant or refuse parole without regard to the previous decision.

(2) Section 172 of the Crimes (Administration of Sentences) Act 1999 (NSW) should be repealed.

6.7: Minimising technical rules

(1) The State Parole Authority must consider whether to grant parole at a private meeting at least 21 days before the end of the offender’s non-parole period.

(2) The Authority (whether on an initial or subsequent consideration of parole) should be able to defer deciding whether to release an offender on parole: (a) at a private meeting, to a future private meeting, whenever it considers it necessary, but in any case for not more than one month from the date of the first deferral (b) at a review hearing, to a future review hearing, whenever it considers it necessary, but in any case for not more than three months from the date of the first deferral. The separate power to postpone or adjourn a review hearing should no longer be available.

(3) The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended to remove the power of the Authority to “examine” an offender.

(4) The Crimes (Administration of Sentences) Act 1999 (NSW) should provide that, at a review hearing, the Authority must consider whether or not to grant parole without regard to any view taken of the case at the private meeting.

(5) A parole order must authorise the offender’s release on a day within 35 days of: (a) the making of the order, or (b) the end of the non-parole period, whichever is the later day.

7. Other issues in the parole decision making process

7.1: Victims’ access to documents

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended so that a registered victim of an offender being considered for parole (whether or not the offender is a serious offender) is entitled to access documents indicating the steps that the offender has taken, or is taking, in custody towards his or her rehabilitation.

7.2: Keeping registered victims informed

The Crimes (Administration of Sentences) Act 1999 (NSW) should require the State Parole Authority to notify a registered victim of an offender that the offender: (a) has been granted parole, and provide a copy of the offender’s parole conditions, or (b) has been refused parole, and indicate when the offender is likely to be next considered for parole. 

7.3: The State Parole Authority’s power to withhold documents

(1) A new provision should be inserted into the Crimes (Administration of Sentences) Act 1999 (NSW) to address the disclosure of submissions from registered victims to offenders, stating that: (a) the State Parole Authority must not disclose such submissions to an offender unless the victim has consented in writing, and (b) if a victim’s submission is withheld from an offender, the Authority must notify the offender or the offender’s legal representative that the submission has been withheld.

(2) Section 194 of the Crimes (Administration of Sentences) Act 1999 (NSW) should be substituted by a new provision stating that: (a) the Authority may withhold any material (including any document or part of a document) if, in the opinion of a judicial member, there is a public interest in withholding the material (b) there is a public interest in the Authority withholding material if a judicial member considers that providing the material would: (i) adversely affect the discipline or security of a correctional centre (ii) endanger any person (iii) put at risk an ongoing operation by a law enforcement agency or intelligence agency (iv) adversely affect the supervision of any offender on parole, or (v) disclose the contents of the offender’s medical, psychiatric or psychological reports (c) if the Authority is considering withholding material from an offender (or the offender’s legal representative), the judicial member must be satisfied that the public interest in withholding it outweighs the public interest in procedural fairness for an offender (d) if the Authority withholds material from any person, the Authority must inform the person from whom it is withholding the material that it has done so (e) regardless of whether there has been a request for access to material, the Authority must provide an offender from whom such material has been withheld with as much information about the contents of the material as would enable the offender to understand and respond to the substance of the facts, matters and circumstances which may affect the parole decision and is, in the opinion of the judicial member, consistent with the public interest in withholding the material (f) requires the Authority to withhold the material from any legal representative of any offender, if the Authority withholds, or would withhold, the material from the offender, (g) applies, subject to the exceptions listed here, where the Authority must, under any law, provide any person with access to a report or other material, or where any person requests access to a report or other material in the Authority’s possession (h) applies notwithstanding any law to the contrary, and   (i) does not apply to registered victims’ submissions or to the Minister’s entitlement to access all documents held by the Authority under s 193A(1).

7.4: Plain language information for offenders

(1) The State Parole Authority should develop an information package for offenders about the parole decision making process and the Authority’s procedures. The package should be written in plain language and be as simple as possible. It should be available in English and other relevant languages.

(2) The Authority should review the standard forms and notices it provides to offenders to ensure that the forms and notices are as simple and easy to understand as possible.

(3) Corrective Services NSW should consider how to provide offenders with more non-written information about the parole decision making process, for example by discussion with the offender’s assigned Community Corrections officer or as part of a pre-release preparation program.

7.5: Providing written reasons for the State Parole Authority’s decisions

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended to require the State Parole Authority to provide to offenders, and any registered victims who have lodged a notice of interest, written reasons for its decisions to grant or refuse parole at a private meeting or review hearing.

7.6: Publishing reasons for State Parole Authority decisions

Subject to privacy and security considerations, the State Parole Authority should publish reasons online for all of its decisions to grant or refuse parole. The Authority should prioritise publishing reasons in cases involving serious offenders.

7.7: Parole in exceptional circumstances

Subsections 160(2) and (3) of the Crimes (Administration of Sentences) Act 1999 (NSW) should be replaced by new provisions that set out a simplified procedure for s 160 applications that is to operate independently of all other procedures relating to the State Parole Authority’s decisions whether to grant parole. The new provisions should provide that: (a) offenders have a right to apply for parole under s 160 (b) the Authority is not required to consider the application if it is satisfied that the application is frivolous, vexatious or has no prospect of success (c) the Authority may, in its discretion, consider the application at a private meeting or at a hearing (d) if the Authority decides to refuse the application at a private meeting, the offender should not be entitled to apply for a hearing to review the decision (e) if the Authority decides to hold a hearing, the Authority must invite the Commissioner, the Attorney General, any registered victim and the offender to make submissions, and (f) if the Authority decides, at a private meeting or at a hearing, that the application should be refused, the Authority must notify the offender of its decision and provide reasons.

8. Membership of the State Parole Authority and Serious Offenders Review Council

8.1: Composition and governance of the State Parole Authority

The parts of the Crimes (Administration of Sentences) Act 1999 (NSW) relating to the composition and governance of the State Parole Authority should be redrafted according to the following requirements: (a) The Authority must have at least 16 members, including at least four judicial members, at least one police member, at least one Community Corrections member, and at least 10 community members. (b) One judicial member should be appointed as Chairperson of the Authority. Another judicial member should be appointed as Deputy Chairperson of the Authority. (c) The Chairperson of the Authority should schedule panels to make the decisions of the Authority. Each scheduled panel should consist of five members: one judicial member, one police member, one Community Corrections member and two community members. The judicial member should preside. (d) If fewer than the 5 members that make up a panel are present at a meeting, the panel may make a decision provided at least one judicial member, one community member and one official member (either a police officer or Community Corrections officer) are present. (e) Each appointing agency for official members may appoint deputies to act in the place of absent official members. (f) The Chairperson of the Authority should have the power to determine how meetings are to be conducted, and also to convene meetings of all Authority members for the purposes of training, communication and professional development.

8.2: Composition and governance of the Serious Offenders Review Council

The parts of the Crimes (Administration of Sentences) Act 1999 (NSW) relating to the composition and governance of the Serious Offenders Review Council should be redrafted according to the following requirements: (a) The Serious Offenders Review Council must have at least eight and no more than 14 members, including at least three judicial members, at least two official members and at least three and no more than nine community members. (b) One judicial member should be appointed as Chairperson of the Council. Another judicial member should be appointed as Deputy Chairperson of the Council. (c) The Chairperson of the Council should schedule panels to make the decisions of the Council. Each scheduled panel should consist of six members: two judicial members, two official members (officers of Corrective Services NSW appointed by the Commissioner) and two community members. The Chairperson (or, if the Chairperson is not present, the Deputy Chairperson) should preside. (d) If fewer than the five members that make up a panel are present at a meeting, the panel may make a decision provided at least one judicial member, one community member and one official member are present. (e) The appointing authority for official members should be able to appoint deputies to act in the place of absent official members. (f) The Chairperson of the Council should have the power to determine how meetings are to be conducted, and also to convene meetings of all Council members for the purposes of training, communication and professional development.

8.3: Merit selection of community members

(1) Community members of the State Parole Authority and the Serious Offenders Review Council should be appointed following an openly advertised formal merit selection process.

(2) In consultation with the Authority and the Council, the NSW Department of Justice should develop standard selection criteria for assessing potential candidates. The Minister for Corrections should approve these criteria.

(3) The Minister for Corrections should appoint a panel (on which the Authority or the Council should be represented) to select community members. The selection panel should recommend candidates for appointment to the Minister. If the Minister accepts the recommendation, the candidate should, subject to Cabinet consideration, be recommended to the Governor for appointment.

8.4: Merit selection of judicial members

The judicial members of the State Parole Authority and the Serious Offenders Review Council should be appointed on the basis of standard appointment criteria. The NSW Department of Justice should develop standard appointment criteria in consultation with the Authority and the Council. The Minister for Corrections and the Attorney General should approve the criteria.

8.5: Community members should reflect the diversity in the community

(1) The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended to provide that State Parole Authority and Serious Offenders Review Council community members must, as far as is practicable, reflect diversity in the community.

(2) A competitive selection process for community members should include consideration of a candidate’s background and the extent to which the appointment of the candidate would contribute to community members reflecting diversity in the community.

8.6: Criteria for appointing community members

The standard selection criteria used for selecting community members should require the person to have knowledge of, or experience working in, the criminal justice system or relevant fields such as social work, mental health or other human services.

8.7: Professional development and performance evaluation for State Parole Authority and Serious Offenders Review Council members

(1) A structured orientation and mentoring process should be developed and implemented for new community members of the State Parole Authority and the Serious Offenders Review Council. The Chairpersons of the Authority and the Council should consider whether a similar or adjusted process would be useful for new judicial and official members.

(2) The Authority should receive adequate funding to hold at a minimum two “policy days” per year for all members’ professional development. As well as covering detailed matters of operating policy, policy days should cover issues such as cross cultural awareness, the experience of offenders with cognitive impairments, and the use of actuarial risk assessment tools in correctional contexts.

(3) The Authority and the Council should develop a system of regular (for example, annual) peer performance appraisals to give members feedback on their performance. Such performance appraisals should be considered during any re-appointment process.

9. Parole conditions

9.1: Standard conditions of parole

(1) The standard condition of parole requiring offenders not to commit any offence should be retained.

(2) Supervision by Community Corrections should be a standard condition of parole. The provisions that deal with the three year limit on the duration of supervision conditions should be removed from cl 218 of the Crimes (Administration of Sentences) Regulation 2014 (NSW).

(3) The standard condition of parole requiring offenders to “be of good behaviour” should be removed.

(4) The standard condition of parole that offenders must adapt to normal lawful community life should be removed.

9.2: Obligations under the supervision condition

Under the Crimes (Administration of Sentences) Regulation 2014 (NSW), the obligations under the supervision condition should be: (a) to obey all reasonable directions of the supervising Community Corrections officer, including, but not limited to, reasonable directions about: (i) reporting to the officer (or the officer’s nominee) and being available for interview (ii) place of residence (iii) participating in programs, interventions and treatment (iv) employment, education and training (v) consenting to third parties disclosing information relevant to monitoring compliance with the parole order  (vi) not associating with any specified person or persons (vii) not frequenting or visiting any specified place or district (viii) observing curfew requirements (ix) alcohol and drug testing, and (x) ceasing or reducing alcohol or drug use (b) to permit the officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address (c) to notify the officer of any change or intention to change his or her employment: (i) if practicable, before the change occurs, or (ii) otherwise, at his or her next interview with the officer (d) not to leave NSW without the permission of the officer’s Community Corrections manager (e) not to leave Australia without the permission of the State Parole Authority.

9.3: Curfews under the supervision condition

(1) The Crimes (Administration of Sentences) Regulation 2014 (NSW) should provide that, if a supervising Community Corrections officer imposes a curfew as an obligation under the supervision condition, the officer may not require a parolee to remain at home for more than 12 hours in any 24 hour period.

(2) Corrective Services NSW should develop a policy about Community Corrections officers imposing a curfew as an obligation under the supervision condition that requires: (a) a supervising officer to obtain permission from a manager before imposing the curfew, and (b) a manager to review the curfew after each month of operation.

9.4: Purpose of reasonable directions

Corrective Services NSW’s Community Corrections Policy and Procedures Manual should state that, to assist in complying with the requirement that they be reasonable, directions should be given to parolees for the purpose of managing risks to community safety and that directions given for other purposes might not be reasonable.

9.5: Information about compliance with parole requirements

Consideration should be given to including in the Crimes (Administration of Sentences) Regulation 2014 (NSW) a provision authorising Corrective Services NSW to collect information from third parties about compliance with parole requirements, and authorising third parties to disclose such information to Corrective Services NSW.

9.6: Plain language summary of obligations

Corrective Services NSW should provide plain language summaries of supervision obligations in English and other relevant languages to all supervised parolees. Supervising officers should also use plain language to explain obligations to parolees at the start of the parole period.

9.7: Framework for additional conditions

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended to specify that the State Parole Authority can impose any additional conditions it considers reasonable to: (a) manage the risk to community safety of releasing the offender on parole, including (but not limited to) any conditions that: (i) support participation in rehabilitation programs and assist in managing reintegration, or (ii) give effect to the offender’s post-release plan prepared by Community Corrections (b) take account of the effect of the offender being released on parole on any victim of the offender, and on any such victim’s family, or (c) respond to breaches of parole.

9.8: Exemptions from complying with place restriction or curfew conditions

(1) The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended so that an offender does not contravene a place restriction or curfew condition that has been imposed by the State Parole Authority if the supervising officer permits the offender to do so. Supervising officers should only grant such permission for a limited time and for a specified purpose.

(2) If a supervising officer grants such permission, Corrective Services NSW should inform any relevant registered victim.

10. Breach and revocation

10.1: A graduated system of sanctions

The legislative and policy framework for responding to breaches of parole should incorporate a system of graduated sanctions, as detailed in Recommendations 10.2-10.3. Community Corrections and the State Parole Authority should apply these sanctions in a way that ensures a proportionate, swift and certain response.

10.2: Community Corrections responses to breach

(1) The Crimes (Administration of Sentences) Act 1999 (NSW) should outline the breach response options available to Community Corrections officers to the following effect: In response to a breach, a Community Corrections officer must do one of the following: (a) report the breach to the State Parole Authority with a recommendation that the Authority do one or more of the following: (i) revoke parole (ii) impose home detention (iii) impose electronic monitoring (iv) make any other variation or addition to the conditions (b) impose a curfew on the offender, for no more than a maximum of 12 hours in any 24 hour period   (c) give a reasonable direction to the offender about the offender’s behaviour (d) request that a more senior Community Corrections officer warn the offender (e) warn the offender (f) note the breach and take no further action.

(2) Corrective Services NSW should develop a policy about Community Corrections officers imposing a curfew in response to a breach that requires: (a) a supervising officer to obtain permission from a manager before imposing the curfew, and (b) a manager to review the curfew after each month of operation.

(3) Corrective Services NSW should develop a policy that sets out the circumstances in which a breach must trigger a Community Corrections report to the Authority, and provide a clear framework to guide Community Corrections officers in exercising their discretion when they respond to breaches.

10.3: State Parole Authority responses to breach

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended so that:

(1) In response to a breach of parole, the State Parole Authority may do one or more of the following: (a) revoke parole (b) add a condition to the parole order that requires the offender: (i) to spend time under home detention conditions, or (ii) to be subject to electronic monitoring (c) otherwise vary, add or remove one or more conditions of the order (d) warn the offender, or (e) note the breach and take no further action.

(2) The Authority must not require an offender to spend time under home detention conditions unless it has received a suitability assessment from Community Corrections.

(3) The Authority must not require an offender to spend more than 30 days under home detention conditions in response to a particular breach.

(4) The Authority must not revoke parole for the purpose of obtaining a home detention suitability assessment unless no response other than: (a) an order that the offender spend time under home detention conditions, or (b) revocation would be proportionate.

10.4: New powers to revoke parole in the absence of breach

The Crimes (Administration of Sentences) Act 1999 (NSW) should provide that: (a) where there is no breach of parole, the State Parole Authority can revoke parole if it considers that: (i) either (A) the offender poses a serious and immediate risk to the safety of the community or of any individual, or (B) there is a serious and immediate risk that the offender will leave NSW, and (ii) the risk cannot be mitigated by reasonable directions from the supervising officer or by adding or varying parole conditions. (b) a Community Corrections officer can report to the Authority in circumstances where there is no breach with a recommendation that the Authority revoke parole or add or vary parole conditions if the officer considers that: (i) either (A) the offender poses a serious and immediate risk to the safety of the community or of any individual, or (B) there is a serious and immediate risk the offender will leave NSW, and (ii) the risk cannot be mitigated by reasonable directions from the officer.

10.5: No offence of breach of parole

Breach of parole should not be an offence.

11. Breach and revocation: procedural issues

11.1: Clarifying the street time provision

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended to the following effect:

(1) Any days from the date a revocation order takes effect to the date that the parolee is taken into custody in relation to the revocation order must be added to the sentence.

(2) Any extension to the parolee’s sentence must not be longer than the time the parolee had left to serve at the date the revocation order took effect.

11.2: Reviews automatic unless a s 169 inquiry has been held

Reviews should continue to be held automatically following revocation of parole except that, if a s 169 inquiry has been held and parole has been revoked, the State Parole Authority should have the discretion whether to hold a review or not.

11.3: The State Parole Authority should be able to take into account an offender’s behaviour during street time

The Crimes (Administration of Sentences) Act 1999 (NSW) should provide that the State Parole Authority can, when deciding whether or  not to rescind a revocation of parole, take into account an offender’s conduct between the date the revocation order took effect and the offender’s return to custody.

11.4 Effect of rescinding a revocation order

The Crimes (Administration of Sentences) Act 1999 (NSW) should provide that the effect of rescinding a revocation order is that the grant of parole has effect as if it had not been revoked.

11.5: The State Parole Authority’s power to vary or add conditions after rescission

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended to include a provision that confirms that, when the State Parole Authority rescinds a revocation order, it has the power to impose further parole conditions, or vary any existing conditions in accordance with s 128.

11.6: Grounds for emergency suspensions

The Crimes (Administration of Sentences) Act 1999 (NSW) should provide that, on application by the Commissioner of Corrective Services, a judicial member of the State Parole Authority can suspend an offender’s parole only if he or she has reasonable grounds for believing that: (a) the offender poses a serious and immediate risk to the safety of the community or of any individual, or (b) there is a serious and immediate risk that the offender will leave NSW in contravention of the conditions of the parole order.

11.7: Reasons for decisions in revocation matters

The State Parole Authority should review the explanatory letter and revocation notification it sends to offenders to make these as straightforward and easy to understand as possible. The explanatory letter should be organised to include the following information: (a) decision made (b) reasons for the decision, and (c) action that the offender may take.

11.8: Publishing reasons for decisions in revocation matters

The State Parole Authority should work towards publishing reasons online for revocation decisions that it must already record in its minutes, including decisions to: (a) revoke a parole order (b) refuse to revoke a parole order in cases where Community Corrections has recommended that the order be revoked or there has been a submission from the Commissioner or the State, and (c) rescind a revocation order.

12. Further applications for parole

12.1: Power to override the 12 month rule

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended so that, when the State Parole Authority refuses parole or revokes parole: (a) the 12 month rule (which limits subsequent applications for parole) remains in place as the general rule but the Authority should have the power to set an earlier date or a later date (up to three years later) at which the offender may apply for release on parole, and (b) the Authority, when deciding whether to set such another date, must consider: (i) the length of time the offender has left to serve (ii) the interests of any registered victim (iii) the risk that the offender will be released at the expiry of the head sentence without any period of parole supervision, or with a reduced period of parole supervision, and (iv) whether the offender is likely to be ready for parole during the next 12 months.

12.2: Process for “manifest injustice” applications

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended so that: (a) there is a formal avenue for offenders to apply for the State Parole Authority to consider release on parole after an offender becomes eligible for parole, on the basis of manifest injustice (b) the State Parole Authority must consider any such application at a private meeting but may refuse to consider the application if it is satisfied that the application is frivolous, vexatious or has no prospect of success (c) if the Authority decides that to deny an early application for parole would not constitute a manifest injustice, it must give the offender brief reasons, and (d) if the Authority decides that to deny an early application for parole would constitute a manifest injustice, the Authority must determine the offender’s application for parole according to the processes that apply to applications for parole in normal circumstances.

13. Appeals and judicial review of State Parole Authority decisions

13.1: No statutory review by the Supreme Court

The Crimes (Administration of Sentences) Act 1999 (NSW) should be amended to remove statutory review by the Supreme Court of State Parole Authority decisions.

14. Case management and support in custody and in the community

14.1: Changes to in-custody case management

(1) Corrective Services NSW should commission an independent review of the implementation of its case management policies.

(2) Corrective Services NSW should review its current policy documents that relate to in-custody management, case management and parole preparation with a view to consolidating, clarifying and simplifying these policies.

(3) Any case management framework that Corrective Services NSW implements should aim to reduce the diffusion of responsibility for case management and parole preparation that currently exists among custodial case officers, case management teams, welfare officers, other services and programs officers and Community Corrections officers.

(4) Corrective Services NSW should review the current system of security classification, with the aim of simplifying and streamlining it.

14.2: Increased transition support through non-government organisations

Corrective Services NSW should evaluate the effectiveness of the Funded Partnership Initiative in assisting offenders with the transition to parole. In particular, the evaluation should consider whether the limited level of “in-reach” and linkage with offenders before they leave custody is sufficient to ensure adequate transition support.

14.3: Improving case management and support for parolees in the community through non-government organisations

(1) Corrective Services NSW should continue its efforts to improve the quality of interactions between Community Corrections supervisors and individual parolees.

(2) Corrective Services NSW should evaluate the Funded Partnership Initiative to determine: (a) whether support is provided for a sufficient period and also the level of unmet demand, and (b) the effect that support provided under the Initiative has on rates of reoffending among parolees.

(3) If the new model of interagency cooperation set up under the Crimes (High Risk Offenders) Act 2006 (NSW) is successful, the Government should consider extending this model to the management of parolees.

(4) The Government should consider establishing local informal re-entry working groups to address the current gaps and difficulties in managing parolees. The aim of the groups would be to coordinate government agencies better and to improve information sharing and cooperation. Relevant government agencies in each location (including agencies covering housing, health, corrections, mental health, and disability services) should participate. Relevant nongovernment organisations in each location could also participate.

14.4: Evaluating rehabilitation programs

Corrective Services NSW should ensure that all the rehabilitation programs it offers are evaluated for their effectiveness in reducing reoffending. Evaluation should be embedded in the design and funding of future programs in accordance with the NSW Government’s Program Evaluation Framework. An independent individual or agency should be involved in such evaluations, where possible. All evaluations should be published online.

15. Pre-parole programs

15.1: Identify the purpose and objectives of unescorted external leave

(1) Corrective Services NSW should review its unescorted external leave policy with a view to simplifying it, and providing a policy framework that identifies the purpose and objectives of pre-release unescorted external leave programs and the criteria for assessing whether a prisoner should be granted such leave, or more leave, before release on parole.

(2) From early in an offender’s sentence, the need for and timing of unescorted external leave should be considered as part of the case plan, but such leave should only be required if needed to address particular identified issues.

15.2: Volunteer sponsors for day leave

Corrective Services NSW should develop partnerships with nongovernment organisations for providing volunteer sponsors for the day leave program.

15.3: Further evaluation of existing transitional centres

The NSW Department of Justice should evaluate the effectiveness of Bolwara House and the Parramatta Transitional Centre in reducing reoffending and improving outcomes for participating offenders. The evaluation should be used to identify further opportunities for expanding transition centres for female and male prisoners.

15.4: Introduction of a back end home detention scheme

Subject to a positive cost-benefit assessment, Corrective Services NSW should introduce a back end home detention scheme based on Recommendations 15.5-15.12. The scheme should be evaluated to ensure it is cost effective and reduces reoffending.

15.5: No involvement for the sentencing court

The sentencing court should not determine the eligibility of offenders for back end home detention at the time of sentencing.

15.6: The State Parole Authority should decide on back end home detention

The State Parole Authority should determine whether an offender can access back end home detention.

15.7: Limited timeframes for back end home detention

Back end home detention should be available only when an offender: (a) is within the final 12 months of the non-parole period, and (b) has served at least half of the non-parole period.

15.8: No offence based exclusions for back end home detention

A back end home detention scheme should not include any offence based exclusions.

15.9: Include back end home detention in the case plan

Corrective Services NSW should initiate consideration of back end home detention through the case plan process.

15.10: Automatic transition to parole for back end home detainees

(1) Back end home detention should not affect the release date for those offenders subject to statutory (or court based) parole.

(2) For offenders with a head sentence of more than three years, the State Parole Authority should have the power to make a back end home detention order and a parole order at the same time. The parole order should take effect at the end of the offender’s nonparole period.

15.11: Breach and revocation of back end home detention

(1) Back end home detention should be subject to the same standard conditions as are currently prescribed for the sentence of home detention.

(2) In addition to the amendments in Recommendation 3.2, the State Parole Authority’s power to revoke statutory parole before an offender is paroled (currently contained in the Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 222) should include a power to revoke statutory parole if it has revoked a back end home detention order.

(3) When the Authority revokes a back end home detention order in respect of an offender with a head sentence of more than three years, the Authority should also be authorised to revoke the existing (but not yet commenced) parole order.

15.12: No restriction on the number of back end home detention considerations

No statutory restrictions should be placed on the number of times an offender can be considered for, or access, back end home detention within the relevant portion of the non-parole period.

16. The problem of short sentences

16.1: Working group on services for offenders who serve short sentences of imprisonment

A working group should be established to investigate the viability of a system for maintaining connections between offenders who serve short sentences of imprisonment and service providers in the community. The working group should include representatives of Corrective Services NSW and government and non-government service providers covering housing, health, mental health, and disability services.

16.2: Sentence administration awareness program

Corrective Services NSW, the State Parole Authority and the Judicial Commission of NSW should develop a program to build the awareness of participants in the criminal justice system about sentencing practice and sentence administration, with a particular emphasis on the issues associated with short sentences of imprisonment.

17. Parole for young offenders

17.1: Separate juvenile parole provisions

Juvenile parole should be dealt with by separate provisions in the Children (Criminal Proceedings) Act 1987 (NSW).

17.2: Children’s Court as decision maker

The Children’s Court should remain the decision maker in the juvenile parole system.

17.3: Principles for the juvenile parole system

An additional principle should apply to the new parole provisions in the Children (Criminal Proceedings) Act 1987 (NSW), namely that the purpose of parole for juveniles is to promote community safety, recognising that the rehabilitation and reintegration of children into the community may be a highly relevant consideration in promoting community safety.

17.4: Structuring the juvenile parole system by age

(1) Whether an offender is subject to the juvenile parole system or adult parole system should be determined by the offender’s age as follows: (a) Parole decision making: Regardless of where an offender is detained or in custody, the Children’s Court should deal with offenders under 18 at the time of the parole decision; the State Parole Authority should deal with offenders who are 18 and over at the time of the parole decision. (b) Parole supervision: Administrative arrangements should continue to provide that, as a general rule, Juvenile Justice NSW should supervise offenders on parole who are under 18 and Community Corrections should supervise offenders on parole who are 18 and over. Juvenile Justice NSW and Corrective Services NSW should continue to make practical arrangements to transfer those who turn 18 to Community Corrections supervision. (c) Decision making about breach and revocation: The Children’s Court should deal with parole breaches by offenders who are under 18 at the time of the breach; the Authority should deal with parole breaches by offenders who are 18 and over at the time of the breach.

(2) Offenders who turn 18 during the last 8 weeks of their sentence should generally remain in the juvenile system.

17.5: Design principles to govern the juvenile parole system

In drafting the parole provisions to be included in the Children (Criminal Proceedings) Act 1987 (NSW), the following principles should be adopted: (a) Flexibility in when and for what purpose a hearing may be convened by the Children’s Court and in what action the Court can take when considering whether to revoke parole or take alternative action. (b) Limited technicality in revocation procedures, including the removal of features of the adult parole system that are irrelevant to young offenders. (c) Responsiveness in how the Children’s Court can deal with changed circumstances, so that the young offender spends as little time as possible in custody. (d) Clarity, ensuring the legislation reflects the current practice of the Children’s Court as closely as possible.

17.6: A mixed system of statutory parole and discretionary parole

The Children (Criminal Proceedings) Act 1987 (NSW) should provide as follows: (a) A young offender sentenced to a head sentence of three years or less with a non-parole period must be released on parole at the end of the non-parole period (“statutory parole”), unless the Children’s Court has revoked parole. (b) Such statutory parole should be subject to the standard conditions of parole set out in Recommendation 17.8. (c) The Children’s Court should have the same power to impose any additional conditions as it currently has for court based parole orders. (d) The Children’s Court should continue to consider young offenders with head sentences of more than three years for discretionary parole.

17.7: A test for discretionary parole

(1) The Children (Criminal Proceedings) Act 1987 (NSW) should provide that the Children’s Court may grant parole for a young offender if it is satisfied that making the order is in the interests of community safety. In doing so, the Court must take into account: (a) the risk to community safety of releasing the offender on parole (b) whether parole supervision is likely to aid in reducing the possibility of the offender reoffending (c) the risk to community safety if the offender is released at the end of the sentence without a period of parole supervision, or is released at a later date with a shorter period of parole supervision, and (d) the extent to which parole conditions can mitigate any risk to community safety during the parole period.

(2) The proposals in Recommendations 4.2 and 4.4 about the matters to be taken into account when making a parole decision, and the contents of a parole report, should be included in the Children (Criminal Proceedings) Act 1987 (NSW), subject to consideration  during drafting to any necessary adjustments to reflect Juvenile Justice NSW and Children’s Court processes.

17.8: Standard conditions and supervision obligations

(1) The Children (Criminal Proceedings) Act 1987 (NSW) should provide that two standard conditions be attached to parole for young offenders: (a) that they not commit any offence, and (b) that they submit to supervision by Juvenile Justice NSW.

(2) The obligations under the supervision condition in the juvenile parole system should be the same as those in Recommendation 9.2.

(3) The Children (Criminal Proceedings) Act 1987 (NSW) should allow the Children’s Court to impose any additional conditions it considers reasonable to: (a) manage the risk to community safety of releasing the offender on parole, including (but not limited to) conditions that: (i) support participation in rehabilitation programs and assist in managing reintegration, or (ii) give effect to the offender’s post-release plan prepared by Juvenile Justice NSW (b) take account of the effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole, or (c) respond to breaches of parole.

(4) The Children (Criminal Proceedings) Act 1987 (NSW) should provide that an offender does not contravene a place restriction or curfew condition that has been imposed by the Children’s Court if the supervising Juvenile Justice NSW officer permits the offender to do so, on the same basis as Recommendation 9.8.

17.9: Options for response to breach and revocation

Bearing in mind Recommendation 17.5, the Children (Criminal Proceedings) Act 1987 (NSW) should provide that the Children’s Court: (a) may respond to a failure to comply with the obligations of parole by doing one or more of the following: (i) revoke parole and issue a warrant (ii) revoke parole and issue a notice (iii) issue a notice (iv) vary the conditions of parole (v) warn the offender, or (vi) note the breach and take no further action. (b) may revoke parole if: (i) it is satisfied that an offender has breached parole (ii) an offender has failed to appear when called upon to do so, or (iii) an offender has asked for parole to be revoked.

17.10: Accounting for street time when Children’s Court revokes parole and issues a notice

The Children (Criminal Proceedings) Act 1987 (NSW) should provide that when the Children’s Court revokes parole and issues a notice but does not rescind the revocation, it can decide that the revocation order takes effect, or is taken to have taken effect, on the date on which the review decision is made or on such earlier date as the Court thinks fit.

17.11: Pre-release revocation of statutory parole

The Children (Criminal Proceedings) Act 1987 (NSW) should state that the Children’s Court may revoke statutory parole before a young offender is released if: (a) the Court is satisfied that the offender’s conduct in detention indicates that the risk that the offender would pose to community safety if released on parole outweighs any reduction in risk likely to be achieved through parole supervision of the offender, or (b) the Court is satisfied that, if released on parole, the offender would pose a serious and immediate risk to his or her own safety, or (c) the Court is satisfied that satisfactory accommodation or post-release arrangements have not been made or cannot be made and the risk to community safety posed by the offender’s release on parole outweighs any reduction in risk likely to be achieved through parole supervision of the offender, or (d) the offender requests that the order be revoked.

17.12: A power to revoke in the absence of breach

The Children (Criminal Proceedings) Act 1987 (NSW) should provide that: (a) where there is no breach of parole, the Children’s Court may revoke parole if it considers that: (i) either (A) the offender poses a serious and immediate risk to the safety of the community or of any individual, or (B) there is a serious and immediate risk that the offender will leave NSW, and (ii) the risk cannot be mitigated by reasonable directions from the supervising officer or by adding or varying parole conditions. (b) a Juvenile Justice NSW officer may report to the Children’s Court in circumstances where there is no breach with a recommendation that the Children’s Court revoke parole or add or vary parole conditions if the officer considers that: (i) either (A) the offender poses a serious and immediate risk to the safety of the community or of any individual, or (B) there is a serious and immediate risk the offender will leave NSW, and (ii) the risk cannot be mitigated by reasonable directions from the officer.

17.13: Flexible hearings for Children’s Court

Bearing in mind Recommendation 17.5, the Children (Criminal Proceedings) Act 1987 (NSW) should provide that: (a) The Children’s Court may convene a hearing at any time to decide whether to grant parole or to revoke parole. The offender may make submissions at any such hearing. (b) When the Children’s Court revokes parole without having previously convened a hearing: (i) The Court must hold a hearing within 28 days of serving the revocation notice on the offender. (ii) At this hearing, the Court must reconsider the revocation decision and confirm or rescind it. (iii) The offender may make submissions at the hearing. (iv) The Court may adjourn the hearing to a later date.

17.14: Reapplying for release on parole

The Children (Criminal Proceedings) Act 1987 (NSW) should provide that: (a) when the Children’s Court refuses to grant parole or revokes parole (whether before an offender is released or after an offender has been released) the Court must set either: (i) a new parole release date, or (ii) a date on or after which the offender may apply to the Court to be reconsidered for parole. (b) when the Children’s Court has set a date after which the offender may apply for reconsideration of parole: (i) the offender may apply at an earlier date and the Court may consider the application in the following circumstances: (A) where new information has come to light or the situation has materially changed (B) where parole was revoked because the offender did not have access to suitable accommodation or community health services and such accommodation or services have subsequently become available, or (C) where parole was revoked because the offender was charged with an offence but the charge has subsequently been withdrawn or dismissed. (ii) the Court may refuse to consider the application if it considers it is frivolous, vexatious or has no prospect of success.

17.15: Serious offenders in the juvenile parole system

The juvenile parole system should not distinguish between serious offenders and non-serious offenders.

18. Other issues requiring amendment

18.1: Reviews automatic unless a s 162 or s 166 inquiry has been held

Reviews should continue to be held automatically following revocation of a home detention order or an intensive correction order, unless a s 162 (intensive correction order) or s 166 (home detention) inquiry has been held and the home detention order or intensive correction order has been revoked. The State Parole Authority should have a discretion whether to hold a review hearing.

18.2: Hearings about revoked Compulsory Drug Treatment Orders

The Crimes (Administration of Sentences) Act 1999 (NSW) should not provide for the State Parole Authority to consider parole less than 60 days before the end of the non-parole period where the Drug Court has revoked an offender’s Compulsory Drug Treatment Order.