An Act to consolidate and amend the law with respect to the administration of certain sentences; and for other purposes.

Part 1 Preliminary

Introductory note. This Part contains machinery provisions, including a statement of the objects of the Act and a provision that defines various words and expressions that are used in the Act.

1   Name of Act

This Act is the Crimes (Administration of Sentences) Act 1999.

2   Commencement

This Act commences on a day or days to be appointed by proclamation.

2A   Objects of Act

(1)  This Act has the following objects:

(a)  to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,

(b)  to ensure that other offenders are kept under supervision in a safe, secure and humane manner,

(c)  to ensure that the safety of persons having the custody or supervision of offenders is not endangered,

(d)  to provide for the rehabilitation of offenders with a view to their reintegration into the general community.

(2)  In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders.

(3)  Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings.

3   Interpretation

(1)  In this Act:

audio link means facilities (including telephone) that enable audio communication between persons at different places.

audio visual link means facilities (including closed-circuit television) that enable audio and visual communication between persons at different places.

Chief Executive Officer, Justice Health means the person for the time being holding office or acting as the chief executive officer of Justice Health under the Health Services Act 1997.

Commissioner means the Commissioner of Corrective Services.

community service order means an order in force under section 8 of the Crimes (Sentencing Procedure) Act 1999 or section 79 of the Fines Act 1996.

community service work means any service or activity approved by the Minister, and includes participation in personal development, educational or other programs.

compliance and monitoring officer means a member of staff of the Department who is appointed as a compliance and monitoring officer under section 235G.

compulsory drug treatment detention means detention in accordance with Part 4A.

compulsory drug treatment order means an order in force under section 18C of the Drug Court Act 1998.

convicted inmate means a person referred to in section 4 (1) (a), (b), (c), (c1), (d1) or (d2).

correctional centre means:

(a)  any premises declared to be a correctional centre by a proclamation in force under section 225, including any juvenile correctional centre or periodic detention centre, and

(b)  any police station or court cell complex in which an offender is held in custody in accordance with this or any other Act,

      but in Part 2 does not include a periodic detention centre, except to the extent provided by the regulations referred to in section 98.

correctional complex means any premises declared to be a correctional complex by virtue of a proclamation in force under section 224.

correctional officer means a person who is employed within the Department as a correctional officer, as referred to in section 231.

court means:

(a)  the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or

(b)  any other court that, or person who, exercises criminal jurisdiction,

      but, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children’s Court or any other court that, or person who, exercises the jurisdiction of the Children’s Court.

Department means the Department of Corrective Services.

detention period means a period that occurs during the term of an offender’s sentence, being a period that, subject to any order under section 85:

(a)  in the case of the first such period:

(i)  begins at 8.30 am on the day specified in that regard in the relevant periodic detention order, and

(ii)  ends at 4.30 pm on the day following the day so specified, and

(b)  in the case of each subsequent such period:

(i)  begins each week at 7.00 pm on the day of the week specified in that regard in the relevant periodic detention order, and

(ii)  ends at 4.30 pm on the second day following the day so specified,

      but does not include any such period that includes the whole or any part of Christmas Day, Good Friday or Easter Sunday.

drug means:

(a)  a prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985, or

(b)  any other substance declared by the regulations to be a drug for the purposes of this Act.

Drug Court means the Drug Court of New South Wales constituted under the Drug Court Act 1998.

exercise a function includes perform a duty.

full-time detention means detention in a correctional centre, but does not include periodic detention.

function includes a power, authority or duty.

general manager means:

(a)  in relation to a correctional centre, the general manager of the correctional centre, or

(b)  in relation to a periodic detention centre, the general manager of the correctional centre who is responsible for the periodic detention centre by virtue of a proclamation referred to in section 226 (3),

      and includes any person who is for the time being in charge of the correctional centre referred to in paragraph (a) or (b), as the case requires.

home detention order means an order in force under section 7 of the Crimes (Sentencing Procedure) Act 1999 or under section 165 of this Act.

inmate means a person to whom Part 2 applies.

interstate leave permit means a permit referred to in section 29.

judicially qualified person means:

(a)  any Judge or retired Judge of a New South Wales court or the Federal Court, or

(b)  any Magistrate or retired Magistrate, or

(c)  any person qualified to be appointed as a Judge of a New South Wales court.

Justice Health means the statutory health corporation of that name specified in Schedule 2 to the Health Services Act 1997.

juvenile correctional centre means any correctional centre declared to be a juvenile correctional centre by a proclamation in force under section 225A.

law enforcement agency means any of the following:

(a)  the Police Service, or the police force of another State or a Territory,

(b)  the New South Wales Crime Commission,

(c)  the Australian Federal Police,

(d)  the Australian Crime Commission,

(e)  the Director of Public Prosecutions of New South Wales, of another State or a Territory or of the Commonwealth,

(f)  the Police Integrity Commission,

(g)  the Independent Commission Against Corruption,

(h)  the Department of Juvenile Justice,

(i)  a person or body prescribed by the regulations for the purposes of this definition.

local leave order means an order referred to in section 25.

local leave permit means a permit referred to in section 26.

managed correctional centre means a correctional centre that is for the time being managed under a management agreement.

management agreement means an agreement referred to in section 238.

management company means a corporation with which the Commissioner has entered into a management agreement under which the corporation manages one or more correctional centres.

medical officer, in relation to a correctional centre, means a medical officer appointed for the correctional centre as referred to in section 236C.

mobile phone includes any device that may be used, in whole or in part, for the purpose of sending or receiving voice or other data over a mobile telephone network, whether or not it may be used for any other purpose.

non-invasive sample means any of the following samples of human biological material:

(a)  a sample of breath, taken by breath test, breath analysis or otherwise,

(b)  a sample of urine,

(c)  a sample of faeces,

(d)  a sample of saliva taken by buccal swab,

(e)  a sample of nail,

(f)  a sample of hair other than pubic hair,

(g)  a sample of sweat taken by swab or washing from any external part of the body other than:

(i)  the genital or anal area or the buttocks, or

(ii)  the breasts of a female or a transgender person who identifies as a female.

non-parole period has the same meaning as it has in the Crimes (Sentencing Procedure) Act 1999.

offender, where occurring elsewhere than in Part 3, 4, 4A or 5, means a person who is subject to a sentence of imprisonment, and includes an inmate within the meaning of Part 2 and an offender within the meaning of Part 3, 4 or 4A.

offender submission means a submission made to the Review Council or the Parole Authority, for the purposes of this Act, by an inmate of a correctional centre.

Official Visitor means an Official Visitor appointed under section 228.

Parole Authority means the State Parole Authority constituted by section 183.

parole eligibility date, in relation to an offender, means:

(a)  subject to paragraph (b), the date on which the offender first becomes eligible for release on parole, or

(b)  if the offender is returned to custody while on release on parole or following revocation of parole, the date occurring 12 months after the date on which the offender is so returned.

parole order means an order in force under:

(a)  section 138, 141, 149, 150, 154A, 159 or 160 of this Act, or

(b)  section 50 of the Crimes (Sentencing Procedure) Act 1999.

periodic detention, in relation to an offender, means:

(a)  detention in a periodic detention centre, or

(b)  participation in an activity pursuant to an order referred to in section 84 (1) (a), or

(c)  the carrying out of community service work pursuant to an order referred to in section 84 (1) (b),

      for as many detention periods as there are weeks in the term of the offender’s sentence.

periodic detention centre means any correctional centre declared to be a periodic detention centre by a proclamation in force under section 226.

periodic detention order means an order in force under section 6 of the Crimes (Sentencing Procedure) Act 1999 or section 89 of the Fines Act 1996.

probation and parole officer means a person who is employed within the Department as a probation and parole officer, as referred to in section 231.

Probation and Parole Service means the administrative unit of that name that exists within the Department.

residential facility means any premises declared to be a residential facility by a proclamation in force under section 236L.

Review Council means the Serious Offenders Review Council constituted by section 195.

sentence means a sentence of imprisonment.

sentencing court, in relation to an offender undergoing a penalty imposed by a court, means the court by which the penalty was imposed.

serious offender means:

(a)  an offender who is serving a sentence for life, or

(b)  an offender who is serving a sentence for which a non-parole period has been set in accordance with Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, or

(c)  an offender who is serving a sentence (or one of a series of sentences of imprisonment) where the term of the sentence (or the combined terms of all of the sentences in the series) is such that the offender will not become eligible for release from custody, including release on parole, until he or she has spent at least 12 years in custody, or

(d)  an offender who is for the time being required to be managed as a serious offender in accordance with a decision of the sentencing court, the Parole Authority or the Commissioner, or

(e)  an offender who has been convicted of murder and who is subject to a sentence in respect of the conviction, or

(f)  an offender who belongs to a class of persons prescribed by the regulations to be serious offenders for the purposes of this definition.

submanagement agreement means an agreement referred to in section 239.

submanagement company means a corporation with which a management company has entered into a submanagement agreement under which the corporation manages one or more correctional centres on behalf of the management company.

transitional centre means premises managed or approved by the Commissioner for the purpose of accommodating certain inmates prior to their release from custody.

victim of a serious offender means a person whose name is recorded in the Victims Register as a victim of that offender.

Victims Register means the register kept under section 256 of the names of victims of offenders who have requested that they be given notice of the possible parole of the offender concerned.

victim submission means a submission made to the Review Council or the Parole Authority, for the purposes of this Act, by a victim of a serious offender.

Visiting Magistrate means a Visiting Magistrate appointed under section 227.

(2)  In this Act:

(a)  a reference to a sentence to which an offender is subject includes a reference to a sentence that has been imposed but is yet to commence, and

(b)  a reference to the term of a sentence is, if the term is varied under this or any other Act, a reference to the term as so varied, and

(c)  a reference to a non-parole period of a sentence is, if the period is varied under this or any other Act, a reference to the period as so varied, and

(d)  a reference to a court that has sentenced an offender, made an order or given a direction includes a reference to the same court differently constituted.

(3)  Notes in the text of this Act do not form part of this Act.

Part 2 Imprisonment by way of full-time detention

Introductory note. This Part applies to those offenders who have been sentenced to imprisonment by way of full-time detention (referred to as inmates) and to other persons who are required to be held in custody. It deals with the following matters:

(a)  the general obligations of inmates (Division 1),

(b)  the circumstances in which an inmate can be kept in segregated or protective custody (Division 2),

(c)  the circumstances in which an inmate may be transferred to another correctional centre, or to hospital, or given leave of absence (Division 3),

(d)  the management of juvenile inmates (Division 3A),

(e)  the conveyance and detention of prisoners received from the Australian Capital Territory (Division 4),

(f)  the conveyance and detention of prisoners received from Norfolk Island (Division 5),

(g)  the prescription of correctional centre offences, the penalties they attract and the procedure for dealing with both correctional centre offences and other offences (Division 6),

(h)  the procedure to be followed in determining whether a serious offender is to be given a low security classification permitting unescorted leave of absence from a correctional centre (Division 7),

(i)  other miscellaneous matters (Division 8).

Division 1 Preliminary

4   Application of Part

(1)  This Part applies to:

(a)  any person the subject of a warrant under section 62 of the Crimes (Sentencing Procedure) Act 1999 by which a court has committed the person to a correctional centre to serve a sentence or the remainder of a sentence by way of full-time detention, other than a person who is on release on parole, and

(b)  any person the subject of a warrant under section 87 of the Fines Act 1996 by which the State Debt Recovery Office has committed the person to a correctional centre to serve a sentence by way of full-time detention, and

(c)  any person the subject of a warrant under section 181 of this Act by which the Parole Authority has committed the person to a correctional centre to serve the remainder of a sentence by way of full-time detention, and

(c1)  any person the subject of a warrant under section 20 of the Crimes (Serious Sex Offenders) Act 2006 by which the Supreme Court has committed the person to a correctional centre pursuant to a continuing detention order or interim detention order under that Act, and

(d)  any person the subject of a warrant or order by which a court has committed the person to a correctional centre on remand in connection with proceedings for an offence committed, or alleged to have been committed, by the person, and

(d1)  any person the subject of an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987 by which the Children’s Court has committed the person to the control of the Minister administering this Act, and

(d2)  any person who is the subject of a warrant under section 170 (1) (a) of the Defence Force Discipline Act 1982 of the Commonwealth by which an authorised officer under that Act has committed the person to a correctional centre pursuant to a punishment of imprisonment imposed under that Act, and

(d3)  any person who is a detainee within the meaning of the Migration Act 1958 of the Commonwealth and who is held in a correctional centre as referred to in paragraph (b) (ii) of the definition of immigration detention in section 5 of that Act, and

(e)  any person the subject of a warrant or order by which a court or other competent authority has committed the person to a correctional centre otherwise than as referred to above, and

(f)  any person in custody who is given into the keeping of a correctional officer under section 250.

(2)  This Part does not apply to a person who is detained in a correctional centre in accordance with Part 16 of the Law Enforcement (Powers and Responsibilities) Act 2002.

(3)  In this Part, inmate means a person to whom this Part applies and convicted inmate means a person referred to in subsection (1) (a), (b), (c), (c1), (d1) or (d2).

5   Obligations of inmate

The obligations of an inmate while serving a sentence by way of full-time detention are:

(a)  to comply with such requirements of this Part and the regulations as apply to the inmate, and

(b)  to comply with the requirements of any directions given to the inmate under this Part.

6   Work performed by inmates

(1)  The general manager of a correctional centre may make an order directing any convicted inmate in the correctional centre to carry out such work as the general manager considers suitable.

(2)  The general manager may direct a convicted inmate, or such classes or groups of convicted inmates as the Commissioner may from time to time determine, to carry out community service work, or any work for the Department or a public or local authority:

(a)  within the correctional centre in which the inmate is imprisoned, or

(b)  within the correctional complex in which the inmate is imprisoned but outside the correctional centre, or

(c)  outside the correctional complex in which the inmate is imprisoned.

(3)  An inmate is not required to carry out work that the inmate is not capable of carrying out.

7   Payments to inmates

(1)  The Commissioner may, out of money provided by Parliament or otherwise legally available, make payments to inmates for any reason (including for work done).

(2)  Payment for work done by inmates of a managed correctional centre may not be made by the management company for the correctional centre otherwise than in accordance with a scheme approved by the Commissioner.

(3)  The payment of an inmate by the Commissioner under this section for work done (whether or not at the direction of the Commissioner) does not constitute employment of, or a contract of service with, the inmate by the Crown or any other person, and accordingly an inmate who undertakes any such paid work is not:

(a)  a worker for the purposes of the Workers Compensation Act 1987, the Workplace Injury Management and Workers Compensation Act 1998, the Annual Holidays Act 1944 or the Long Service Leave Act 1955, or

(b)  an employee (however described) for the purposes of the Industrial Relations Act 1996 or any Act or other law.

8   Release from custody

(1)  Unless sooner released on parole, an inmate who is serving a sentence by way of full-time detention (the current sentence) is to be released from custody on the day the sentence expires (the release date), as determined in accordance with Division 1 of Part 4 of the Crimes (Sentencing Procedure) Act 1999 but subject to any variation of the term of that sentence under this or any other Act.

(2)  An inmate may be released from custody:

(a)  at any time on the release date for the current sentence, or

(b)  if the release date for the current sentence is a Saturday, Sunday or public holiday and the inmate so requests, at any time during the next day that is not a Saturday, Sunday or public holiday.

(3)  This section does not apply to an inmate who, as at the release date for the current sentence, is subject to another sentence that is being served by way of full-time detention:

(a)  where the other sentence commenced before, but will not end until after, the release date for the current sentence, or

(b)  where the other sentence commences immediately after the release date for the current sentence.

Division 2 Segregated and protective custody

9   Definitions

In this Division:

protective custody direction means a direction referred to in section 11.

segregated custody direction means a direction referred to in section 10.

suspension direction means a direction referred to in section 20 (1) (a).

10   Segregated custody of inmates

(1)  The Commissioner may direct that an inmate be held in segregated custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to:

(a)  the personal safety of any other person, or

(b)  the security of a correctional centre, or

(c)  good order and discipline within a correctional centre.

(2)  The general manager of a correctional centre may exercise the Commissioner’s functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given.

(3)  A segregated custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre.

(4)  Subsection (3) is subject to section 15.

11   Protective custody of inmates

(1)  The Commissioner may direct that an inmate be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate.

(2)  The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so.

(3)  The general manager of a correctional centre may exercise the Commissioner’s functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the protective custody direction was given.

(4)  A protective custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre.

(5)  Subsection (4) is subject to section 15.

12   Effect of segregated or protective custody direction

(1)  An inmate subject to a segregated or protective custody direction is to be detained:

(a)  in isolation from all other inmates, or

(b)  in association only with such other inmates as the Commissioner (or the general manager of the correctional centre in the exercise of the Commissioner’s functions under section 10 or 11) may determine.

(2)  An inmate who is held in segregated or protective custody:

(a)  is not to suffer any reduction of diet, and

(b)  is not to be deprived of any rights or privileges other than those determined by the Commissioner (or the general manager in the exercise of the Commissioner’s functions under section 10 or 11), either generally or in a particular case, and other than those the deprivation of which is necessarily incidental to the holding of the inmate in segregated or protective custody.

13   Form of direction

A segregated or protective custody direction must be in writing and must include the grounds on which it is given.

14   Information concerning review of segregated or protective custody direction

As soon as practicable after an inmate is directed:

(a)  to be held in segregated custody under section 10, or

(b)  to be held in protective custody under section 11 (other than at the inmate’s request),

the general manager of the correctional centre is to provide the inmate with information concerning the inmate’s rights to a review of the segregated or protective custody direction.

15   Transfer of inmate held in segregated or protective custody

(1)  If an inmate held in segregated or protective custody under a segregated or protective custody direction given by the general manager of a correctional centre is transferred to another correctional centre, the segregated or protective custody direction applies:

(a)  in relation to the correctional centre to which the inmate is transferred (the receiving correctional centre), and

(b)  in relation to the conveyance of the inmate to the receiving correctional centre, including custody of the inmate in any correctional centre in which the inmate is held during the course of being conveyed to the receiving correctional centre.

(2)  Within 72 hours after the arrival of the inmate at the receiving correctional centre, the general manager of the receiving correctional centre must review the segregated or protective custody direction, having regard to the grounds referred to in section 10 or 11, and give one of the following directions:

(a)  a direction revoking the segregated or protective custody direction,

(b)  a direction confirming the segregated or protective custody direction,

(c)  a direction confirming the segregated or protective custody direction but amending its terms.

(3)  A direction given under subsection (2) has effect according to its terms.

(4)  A segregated or protective custody direction that is subject to a direction under subsection (2) (b) or (c) is, on and after the giving of that direction, taken to be a segregated or protective custody direction given by the general manager of the receiving correctional centre.

(5)  A direction by the general manager of a receiving correctional centre revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section.

16   Review of segregated or protective custody direction by Commissioner

(1)  The general manager of a correctional centre where an inmate is held in segregated or protective custody must submit a report about the segregated or protective custody direction to the Commissioner within 14 days after the date on which the direction is given (the relevant date), regardless of whether the segregated or protective custody direction was given by the Commissioner or by the general manager of a correctional centre.

(2)  Within 7 days after receiving the report, the Commissioner must review the segregated or protective custody direction and give one of the following directions:

(a)  a direction revoking the segregated or protective custody direction,

(b)  a direction confirming the segregated or protective custody direction,

(c)  a direction confirming the segregated or protective custody direction but amending its terms.

(3)  If the direction is confirmed, the general manager of the correctional centre where the inmate is held in segregated or protective custody must submit a further report about the direction to the Commissioner within 3 months after the relevant date, and within each subsequent period of 3 months after that period.

(4)  Within 7 days after each occasion on which the Commissioner receives any such further report, the Commissioner must review the segregated or protective custody direction and give one of the directions referred to in subsection (2) (a)–(c).

(5)  The confirmation of a segregated or protective custody direction by the general manager of a correctional centre under section 15, or by the Review Council under section 22, does not affect the requirements for reporting about and reviewing a segregated or protective custody direction under this section.

(6)  A direction by the Commissioner revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section.

(7)  In this section:

report, in relation to a segregated or protective custody direction, means a report recommending whether or not the segregated or protective custody direction should be revoked, confirmed or amended.

17   Revocation of segregated or protective custody direction

(1)  A segregated or protective custody direction remains in force until it is revoked.

(2)  The Commissioner may, at any time, revoke a segregated or protective custody direction or amend its terms.

(3)  The Commissioner must revoke a protective custody direction given at the request of an inmate if the inmate requests the Commissioner in writing to revoke it.

(4)  The general manager of a correctional centre may exercise the Commissioner’s functions under this section in relation to the correctional centre.

18   Report to Minister on segregated or protective custody direction

(1)  As soon as practicable after confirming a segregated or protective custody direction, the Commissioner must give written notice of that fact to the Minister, giving reasons for the confirmation direction, if:

(a)  the confirmation direction will result in the inmate being subject to a total continuous period of segregated or protective custody exceeding 6 months, or

(b)  the inmate has already been subject to a total continuous period of segregated or protective custody exceeding 6 months.

(2)  This section does not apply to a direction confirming a protective custody direction that was given at the request of an inmate.

19   Review of segregated or protective custody direction by Review Council

(1)  An inmate whose total continuous period of segregated or protective custody exceeds 14 days may apply to the Review Council for a review of the segregated or protective custody direction under which the inmate is held in segregated or protective custody.

(2)  The application is to be in writing and is to include the inmate’s reasons for making the application.

(3)  The Review Council must review the direction unless subsection (4) applies.

(4)  The Review Council may refuse to review the direction if:

(a)  the application does not, in the opinion of the Review Council, disclose substantial grounds for a review, or

(b)  the Review Council has previously determined a review of the same direction under this Division and the application does not, in the opinion of the Review Council, disclose substantially different grounds for review.

(5)  The Review Council may not refuse to review a direction under subsection (4) if a period of more than 3 months has elapsed since the Review Council determined a review of the segregated or protective custody direction.

(6)  This section applies regardless of whether the relevant segregated or protective custody direction was given by the Commissioner or by the general manager of a correctional centre.

20   Suspension directions by Review Council

(1)  The Chairperson of the Review Council may give a direction for:

(a)  the suspension of an inmate’s segregated or protective custody direction, or

(b)  the transfer of an inmate to a different correctional centre.

(2)  A suspension direction may be given at any time after an application for a review is made and before it is determined.

(3)  While a suspension direction is in force, the inmate is not to be held in segregated or protective custody unless a new segregated or protective custody direction is given.

(4)  The Chairperson may at any time vary or revoke a suspension direction.

(5)  A suspension direction does not revoke a segregated or protective custody direction.

(6)  A direction for the transfer of an inmate to a different correctional centre may be given:

(a)  if the Chairperson considers that the inmate’s removal would facilitate the review of the segregated or protective custody direction, or

(b)  for any other reason that the Chairperson thinks fit.

(7)  The determination of a review of a segregated or protective custody direction by the Review Council under section 22 revokes any suspension direction applying to the segregated or protective custody direction.

21   Procedure for review of segregated or protective custody direction by Review Council

(1)  In determining any matter relating to the segregated or protective custody of an inmate, the Review Council is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate.

(2)  The Review Council must cause notice of any hearing in relation to a review to be given to the inmate who applied for the review.

(3)  If the inmate so wishes, the Review Council must allow the inmate to be present, and to be heard, at the hearing.

(4)  The inmate may be represented by an Australian legal practitioner chosen by the inmate or, if the Review Council so approves, by some other person chosen by the inmate.

(5)  The Commissioner or the general manager of a correctional centre (or both) may be represented by an Australian legal practitioner or by some other person.

(6)  Division 2 of Part 9 applies to the conduct of a review by the Review Council under this Division.

22   Determination of review by Review Council

(1)  In reviewing a segregated or protective custody direction, the Review Council must take the following matters into account:

(a)  whether the direction was given or reviewed in accordance with this Division,

(b)  whether the direction was reasonable in the circumstances,

(c)  whether the direction was necessary to secure the personal safety of the inmate or any other person,

(d)  the security of, and the preservation of good order and discipline within, the relevant correctional centre,

(e)  the interests of the public.

(2)  In determining an application for review, the Review Council may revoke, confirm or amend the segregated or protective custody direction to which the application relates.

Division 3 Transfer and leave of absence

Subdivision 1 Transfer and leave of absence within New South Wales

23   Transfers from one correctional centre to another

(1)  The Commissioner may order that an inmate be transferred from one correctional centre to another:

(a)  because the correctional centre is being or is about to be repaired, altered, enlarged or rebuilt, or

(b)  because of an outbreak or threatened outbreak in the correctional centre of an infectious disease, or

(c)  because the correctional centre has ceased or is about to cease to be a correctional centre, or

(d)  because the correctional centre is overcrowded, or

(e)  because inmates in the correctional centre need to be separated in compliance with the requirements of the regulations, or

(f)  because of any other reason specified in the order.

(2)  In relation to an inmate who is under the age of 18 years, such an order may not be made on a ground referred to in subsection (1) (d), (e) or (f) so as to transfer the inmate from a juvenile correctional centre to a correctional centre that is not a juvenile correctional centre.

Note. Such an inmate may only be transferred to such a correctional centre in accordance with section 41C (2).

24   Transfers to hospital

(1)  The Commissioner may order that an inmate be transferred:

(a)  to a hospital (including a hospital that is or forms part of a correctional centre or correctional complex), or

(b)  to some other place specified in the order,

      if of the opinion that it is necessary or desirable for the inmate to receive medical attention there.

(2)  While the inmate is at the hospital or other place, the Commissioner may direct a correctional officer to take charge of the inmate.

(3)  An inmate who is transferred to a hospital may be discharged from the hospital on the certificate of the medical superintendent or other person in charge of the hospital.

(4)  On being discharged from the hospital or other place, the inmate must immediately be returned:

(a)  to the correctional centre from which the inmate was transferred, or

(b)  to such other correctional centre as the Commissioner may direct.

(5)  The Commissioner’s functions under this section may be exercised in relation to a correctional centre by the general manager of the correctional centre.

25   Local leave orders

(1)  The Commissioner may make an order (a local leave order) requiring an inmate to be taken from a correctional centre to any place in the State:

(a)  on such conditions and for such period as may be specified in the order, and

(b)  for such purpose as the Commissioner considers appropriate.

(2)  Without limiting subsection (1) (b), the purposes for which a local leave order may be made include the following:

(a)  enabling an inmate to be interviewed by a police officer, or by an officer of a law enforcement agency, in connection with the commission of an offence in a correctional centre, whether or not the offence was committed or is suspected of having been committed by the inmate,

(b)  enabling an inmate to assist in the administration of justice.

(3)  The conditions to which a local leave order is subject must include such conditions as are required by the regulations to be included in such an order.

(4)  Subject to subsection (3), the Commissioner may, at any time:

(a)  vary or omit any condition of a local leave order, or

(b)  substitute or add new conditions to a local leave order, or

(c)  revoke a local leave order.

26   Local leave permits

(1)  The Commissioner may issue a permit (a local leave permit) allowing an inmate to be absent from a correctional centre:

(a)  on such conditions and for such period as may be specified in the permit, and

(b)  for such purpose as the Commissioner considers appropriate.

(2)  Without limiting subsection (1) (b), the purposes for which a local leave permit may be issued include the following:

(a)  enabling an inmate to be interviewed by a police officer, or by an officer of a law enforcement agency, in connection with the commission of an offence in a correctional centre, whether or not the offence was committed or is suspected of having been committed by the inmate,

(b)  enabling an inmate to assist in the administration of justice,

(c)  enabling an inmate to attend a funeral service or burial of a member of the inmate’s immediate or extended family,

(d)  enabling an inmate to be present at an occasion of special significance to the inmate’s immediate or extended family,

(e)  enabling an inmate to visit any member of the inmate’s immediate family who is suffering serious illness or disability,

(f)  enabling an inmate to apply for work or attend an interview with an employer or prospective employer,

(g)  enabling an inmate to attend a place of education or training in connection with any course of education or training,

(h)  enabling an inmate to engage in employment specified in the permit,

(i)  enabling an inmate to have weekend leave,

(j)  enabling an inmate to reside at a transitional centre,

(k)  enabling an inmate to attend tuition or perform work in connection with a course of education or training being undertaken by the inmate,

(l)  in the case of a female inmate who is the mother of a young child or young children, enabling the inmate to serve her sentence with her child or children in an appropriate environment.

(3)  The conditions to which a local leave permit is subject must include such conditions as are required by the regulations to be included in such a permit.

(4)  Subject to subsection (3), the Commissioner may, at any time:

(a)  vary or omit any condition of a local leave permit, or

(b)  substitute or add new conditions to a local leave permit, or

(c)  revoke a local leave permit.

(5)  For the purposes of this section, member of the inmate’s immediate family includes a person with whom the inmate has a de facto relationship (within the meaning of the Property (Relationships) Act 1984).

26A   Conditions of leave as to non-association and place restriction

(1)  The conditions to which a local leave permit is subject may include either or both of the following:

(a)  provisions prohibiting or restricting the inmate from associating with a specified person,

(b)  provisions prohibiting or restricting the inmate from frequenting or visiting a specified place or district.

(2)  A condition referred to in subsection (1) (a) or (b) is suspended while the inmate is in lawful custody (otherwise than while unescorted as referred to in section 38 (2) (a)).

(3)  An inmate does not contravene a prohibition or restriction as to his or her association with a specified person:

(a)  if the inmate does so in compliance with an order of a court, or

(b)  if, having associated with the person unintentionally, the inmate immediately terminates the association.

(4)  An inmate does not contravene a requirement not to frequent or visit a specified place or district if the inmate does so in compliance with an order of a court.

(5)  In this section, associate with means:

(a)  to be in company with, or

(b)  to communicate with by any means (including post, facsimile, telephone and email).

Subdivision 2 Interstate leave of absence

27   Definitions

In this Subdivision:

corresponding Commissioner, in relation to a participating State, means the officer responsible for the administration of correctional centres (however described) in the participating State.

corresponding interstate law means a law that is declared to be a corresponding interstate law for the purposes of this Subdivision by an order published under section 28.

escape, in relation to an interstate prisoner temporarily released from lawful custody, includes fail to return to lawful custody at the end of the time for which the prisoner has been released.

escorted custody, in relation to an interstate prisoner, means in the custody of an interstate escort under section 30.

interstate escort, in relation to a participating State, means:

(a)  a correctional officer (however described) or a police officer of that State, or

(b)  a person who is authorised to have the custody of an interstate prisoner under a permit issued in accordance with the corresponding interstate law of that State, or

(c)  a person who is appointed by the corresponding Commissioner of that State by an instrument in writing to be an escort for the purpose of escorting an interstate prisoner to that State.

interstate prisoner means a person who is in New South Wales under the authority of a permit issued under a corresponding interstate law.

participating State means any State in which a corresponding interstate law is in force.

State includes the Australian Capital Territory and the Northern Territory.

unescorted custody, in relation to an interstate prisoner, means leave within New South Wales in circumstances where:

(a)  the leave is authorised by a permit issued under a corresponding interstate law, and

(b)  no interstate escort has been appointed to escort the prisoner while within New South Wales, and

(c)  the corresponding interstate law provides that the prisoner is taken to be in the custody of the corresponding Commissioner or another official of the participating State while in New South Wales.

28   Corresponding interstate law

(1)  The Governor may, by order published in the Gazette, declare that a law of a State other than New South Wales is a corresponding interstate law for the purposes of this Subdivision.

(2)  Such an order is to be made only if the Governor is satisfied that the law substantially corresponds with the provisions of this Subdivision.

29   Issue of interstate leave permit

(1)  The Commissioner may issue an interstate leave permit to an inmate of a correctional centre for leave to travel to and from, and remain in, a participating State for a specified period:

(a)  if the inmate does not have a high security classification, on any grounds that the Commissioner considers appropriate, or

(b)  if the inmate has a high security classification, only if the leave is for medical treatment or for some compassionate purpose.

(2)  In particular, the Commissioner may issue an interstate leave permit to an inmate who is an Aboriginal person if satisfied that the purpose of the leave is:

(a)  to enable the inmate to attend a funeral service or burial of a member of the inmate’s immediate or extended family, or

(b)  to enable the inmate to be present at an occasion of special significance to the inmate’s immediate or extended family.

(3)  The period specified in an interstate leave permit must not exceed 7 days.

(4)  An interstate leave permit is subject to such conditions (including conditions relating to the escort of the inmate) as the Commissioner specifies in the permit or as may be prescribed by the regulations.

(5)  The Commissioner may, by instrument in writing, appoint any correctional officer to be an escort for the purposes of this Subdivision.

(6)  In this section, high security classification means a classification prescribed by the regulations as a high security classification.

(7)  For the purposes of this section, member of the inmate’s immediate family includes a person with whom the inmate has a de facto relationship (within the meaning of the Property (Relationships) Act 1984).

30   Effect of interstate leave permit

(1)  If it is a condition of an interstate leave permit that an inmate be escorted to a participating State, the permit:

(a)  authorises the inmate concerned to be absent from the correctional centre in the custody of an escort for the purpose and period specified in the permit, and

(b)  authorises the escort to take and keep custody of the inmate for the purpose of escorting the inmate:

(i)  to the participating State (whether or not across any other State), and

(ii)  within the participating State,

      in accordance with the permit, and

(c)  authorises the escort to take and keep custody of the inmate for the purpose of returning the inmate to the correctional centre from which leave of absence was given.

(2)  If it is not a condition of an interstate leave permit that an inmate be escorted to a participating State, the permit authorises the inmate concerned to be absent from the correctional centre for the purpose and period specified in the permit.

31   Variation or revocation of interstate leave permit

The Commissioner may at any time:

(a)  vary or omit any condition of an interstate leave permit (whether specified in the permit or prescribed by the regulations), or

(b)  substitute or add new conditions to an interstate leave permit, or

(c)  revoke an interstate leave permit.

32   Breach of interstate leave permit

An inmate must not fail, without reasonable excuse, to comply with any condition of an interstate leave permit.

Maximum penalty: 10 penalty units.

33   Notice to participating State and transit jurisdiction

On granting an interstate leave permit, the Commissioner must cause written notice of the fact that the permit has been granted, and of the period of the permit, to be given:

(a)  to the corresponding Commissioner and the chief officer of police of the participating State to which the inmate is to travel, and

(b)  to the chief officer of police of any other jurisdiction through which the inmate is to travel to reach the participating State.

34   Effect of interstate leave permit issued under corresponding interstate law

A correctional officer (however described) or a police officer of a participating State who is authorised under a permit issued under a corresponding interstate law to escort a person imprisoned in that State to or through New South Wales is authorised, while in New South Wales:

(a)  to take and keep custody of the person for the purposes and period set out in the permit, and

(b)  to take and keep custody of the person for the purpose of returning the person to the participating State.

35   Arrest of escaped interstate prisoners

If it appears to an interstate escort, a police officer or any other person that an interstate prisoner has escaped from lawful custody, the interstate escort, police officer or person may arrest the interstate prisoner and (in the case of an interstate prisoner in escorted custody) return the interstate prisoner to the custody of the interstate escort.

36   Return of escaped interstate prisoners to State of origin

(1)  An interstate prisoner:

(a)  who is arrested following an escape, or

(b)  who attempts to escape,

      may be taken before a Magistrate.

(2)  Despite the terms of any permit issued in accordance with a corresponding interstate law, a Magistrate may by warrant (a return warrant):

(a)  order the return of the interstate prisoner to the participating State in which the permit was issued, and

(b)  order the interstate prisoner to be delivered to an interstate escort for the purpose of such a return.

(3)  A return warrant may be executed in accordance with its terms.

(4)  An interstate prisoner who is the subject of a return warrant may be held in custody as an inmate until the person is delivered into the custody of an interstate escort in accordance with that warrant, or until the expiry of a period of 14 days from the issue of the warrant, whichever first occurs.

(5)  A return warrant ceases to have effect if the interstate prisoner who is the subject of the warrant is not delivered into the custody of an interstate escort, in accordance with the terms of the warrant, within 14 days after the warrant is issued.

37   Liability of Crown for damage caused by inmate or escort

(1)  The Crown in right of the State is liable for any damage or loss sustained by any person in a participating State that is caused by the acts or omissions of an inmate or escort while in a participating State because of an interstate leave permit.

(2)  Nothing in this section affects any right of action the Crown may have against the inmate or escort for the damage or loss concerned.

Subdivision 3 Miscellaneous

38   Absent inmates taken to be in custody

(1)  This section applies to an inmate who is absent from a correctional centre in any of the following circumstances:

(a)  while performing community service work or other work outside a correctional centre, as referred to in section 6 (2),

(b)  while being transferred from one correctional centre to another, as referred to in section 23 or 41C,

(c)  while at a hospital or other place referred to in section 24, or while being transferred between a correctional centre and such a hospital or place,

(d)  while absent from a correctional centre in accordance with a local leave order,

(e)  while absent from a correctional centre in accordance with a local leave permit,

(f)  while absent from a correctional centre in accordance with an interstate leave permit,

(f1)  while absent from a correctional centre in accordance with an approval granted under section 255A,

(g)  while being transferred from one part of a correctional centre to another part of the correctional centre located on separate premises.

(2)  An inmate who is absent from a correctional centre in any of the circumstances referred to in subsection (1) is taken to be in custody as follows:

(a)  if not escorted by a correctional officer, the inmate is taken to be in the custody of the general manager of the correctional centre from which he or she is absent,

(b)  if escorted by a correctional officer employed in a correctional centre, the inmate is taken to be in the custody of the general manager of the correctional centre in which the correctional officer is employed,

(c)  if escorted by a correctional officer not employed in a correctional centre, the inmate is taken to be in the custody of the designated officer.

(3)  An inmate is not taken to be absent from a correctional centre merely because the inmate is in some other part of a correctional complex of which the correctional centre forms part.

(4)  In this section:

correctional officer includes:

(a)  a person employed on a temporary basis within the Department to perform some or all of the duties of a correctional officer, and

(b)  a person holding an authority under section 240 to perform escort duties.

designated officer means the person for the time being holding or acting in the position within the Department designated by the Commissioner for the purposes of this section.

39   Powers of arrest

(1)  A police officer or correctional officer may, with or without a warrant, arrest an inmate:

(a)  who has contravened, or has manifested an intention to contravene, a condition of a local leave order, local leave permit, interstate leave permit or approval granted under section 255A, or

(b)  whose local leave order, local leave permit, interstate leave permit or approval granted under section 255A has been revoked, or

(c)  who has not returned to a correctional centre at the expiry of the period specified in a local leave order, local leave permit, interstate leave permit or approval granted under section 255A, or

(d)  who has escaped from custody.

(2)  A police officer who arrests an inmate under subsection (1):

(a)  in the case of an inmate who has escaped from custody—is to take the inmate before an authorised officer to be dealt with according to law, or

(b)  in any other case—is to convey the inmate to the nearest appropriate correctional centre.

(3)  A correctional officer who arrests an inmate under subsection (1):

(a)  in the case of an inmate who has escaped from custody—is to take the inmate to a police officer, or before an authorised officer to be dealt with according to law, or

(b)  in any other case—is to convey the inmate to the nearest appropriate correctional centre.

(4)  If an inmate is taken before an authorised officer under subsection (2) (a) or (3) (a), the authorised officer may, by warrant, commit the inmate to the custody of:

(a)  the person from whose custody the inmate escaped, or

(b)  a correctional centre to be held pending the return of the inmate to the custody of that person, or

(c)  any other person with lawful authority to hold the inmate in custody.

(5)  Subsection (4) does not limit the powers of an authorised officer to deal with an inmate according to law.

(6)  A warrant under subsection (4) is sufficient authority:

(a)  for any police officer or correctional officer to convey the inmate to the person specified in the warrant, or to the correctional centre specified in the warrant, and to deliver the inmate into the custody of that person or the general manager of that correctional centre, and

(b)  for the general manager of the correctional centre to keep the inmate in his or her custody pending the person’s return to the custody of the person from whose custody the inmate escaped.

(7)  In this section:

authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

40   Certain unlawful absences not to affect length of sentence

(1)  This section applies to an inmate who is unlawfully absent from a correctional centre during the term of a sentence:

(a)  otherwise than by reason of having escaped from lawful custody, and

(b)  otherwise than by reason of having failed to return to a correctional centre at the expiry of the period specified in a local leave permit, interstate leave permit or approval granted under section 255A, and

(c)  otherwise than by reason of having failed to return to a correctional centre following the revocation of a periodic detention order, home detention order or parole order,

      and so applies whether or not the inmate is taken, while absent, to be in the custody of the general manager of the correctional centre.

(2)  For the purpose only of calculating how much of the sentence the inmate has served, the inmate is taken to have been in lawful custody for the whole of that absence.

41   Transfer of inmates to or through ACT

An inmate who is in the Australian Capital Territory:

(a)  while being transferred from one correctional centre to another under this Act, or

(b)  while being transferred to a hospital or other place for medical attention, or

(c)  while absent from a correctional centre in accordance with a local leave order or local leave permit,

remains in the lawful custody of the general manager of the correctional centre from which the inmate is transferred or absent.

Division 3A Juvenile inmates

41A   Definitions

In this Division:

adult correctional centre means a correctional centre that is not a juvenile correctional centre.

juvenile inmate means an inmate who is under the age of 21 years.

section 28 juvenile inmate means a juvenile inmate under the age of 18 years who has been transferred to a juvenile correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987.

41B   Custody of section 28 juvenile inmates

Subject to this Act, a section 28 juvenile inmate is to be held in custody in a juvenile correctional centre.

41C   Transfers to and from juvenile correctional centres

(1)  The Commissioner may order that a juvenile inmate be transferred from an adult correctional centre to a juvenile correctional centre for any reason specified in the order.

(2)  The Minister may order that a juvenile inmate be transferred from a juvenile correctional centre to an adult correctional centre if:

(a)  the Commissioner, in the case of a juvenile inmate who is of or above the age of 18 years, or

(b)  the Review Council, in the case of a juvenile inmate who is under the age of 18 years,

      recommends to the Minister that the inmate should be transferred.

(3)  A recommendation for the transfer of a juvenile inmate from a juvenile correctional centre to an adult correctional centre may not be made unless the Commissioner or Review Council, as the case may be, is satisfied that:

(a)  the inmate wishes to be transferred, or

(b)  the inmate’s behaviour is or has been such that he or she should be transferred, or

(c)  it is in the inmate’s best interests that he or she be transferred, or

(d)  the association of the inmate with other juvenile inmates at the juvenile correctional centre constitutes, or is likely to constitute, a threat to:

(i)  the personal safety of any other person, or

(ii)  the security of the juvenile correctional centre, or

(iii)  good order and discipline within the juvenile correctional centre.

(4)  Subsection (2) does not limit the operation of section 23 (1) in relation to juvenile inmates who are of or above the age of 18 years.

Note. Section 23 (2) limits the operation of section 23 (1) in relation to juvenile inmates who are under the age of 18 years.

(5)  Subsections (2), (3) and (4) do not apply to the transfer of a juvenile inmate to a hospital pursuant to an order by the Commissioner under section 24.

(6)  Such an order may not be made without prior consultation between the Commissioner and the Chief Executive Officer, Justice Health.

41D   Procedure to be followed by Review Council as to transfer of juvenile inmate to adult correctional centre

(1)  On the application of the Commissioner, the Review Council is to conduct an inquiry for the purpose of deciding whether or not to recommend the transfer of a juvenile inmate from a juvenile correctional centre to an adult correctional centre, as referred to in section 41C (2) (b).

(2)  In conducting an inquiry under this section, the Review Council is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate.

(3)  The Review Council must cause notice of any hearing in relation to an inquiry under this section to be given to the Commissioner and to the juvenile inmate to whom the inquiry relates.

(4)  If the inmate so wishes, the Review Council must allow the juvenile inmate to be present, and to be heard, at the hearing.

(5)  The juvenile inmate may be represented by an Australian legal practitioner chosen by the inmate or, if the Review Council so approves, by some other person chosen by the inmate.

(6)  The Commissioner may be represented by an Australian legal practitioner or by some other person.

(7)  For the purposes of an inquiry under this section, the Review Council must co-opt a person who is:

(a)  a Children’s Magistrate or former Children’s Magistrate, or

(b)  an Australian legal practitioner of at least 7 years’ standing who has experience as an advocate on behalf of children,

      unless such a person is already a member of the Review Council and is available for the inquiry.

(8)  A person who is co-opted to the Review Council under subsection (7):

(a)  may be co-opted:

(i)  as a community member, if the Review Council, as constituted for the purposes of the inquiry, includes a judicial member, or

(ii)  as a judicial member, if the Review Council, as constituted for the purposes of the inquiry, does not include some other judicial member, and

(b)  is taken, for the purposes of the inquiry, to be a judicial member or community member, as the case may be, and has, in relation to the inquiry, all of the powers and immunities of such a member.

(9)  Division 2 of Part 9 applies to the conduct of an inquiry by the Review Council under this section.

Division 4 Full-time detainees received from Australian Capital Territory

42   Definitions

In this Division:

Australian Capital Territory Act means the Crimes (Sentence Administration) Act 2005 of the Australian Capital Territory.

Australian Capital Territory direction means a direction issued under section 26 of the Australian Capital Territory Act.

chief executive, escort officer and full-time detainee have the same meanings as they have in the Australian Capital Territory Act.

43   Application of Division

This Division does not apply to a full-time detainee who is in custody in a correctional centre in New South Wales pursuant to a transfer effected under the Prisoners (Interstate Transfer) Act 1982.

44   Conveyance and detention of full-time detainees from ACT

(1)  If an escort officer has a full-time detainee in custody in accordance with the terms of an Australian Capital Territory direction, it is lawful for the escort officer to hold and deal with the detainee in accordance with those terms.

(2)  It is the duty of the general manager of a correctional centre or any other officer doing duty at a correctional centre to accept custody of any full-time detainee the subject of an Australian Capital Territory direction.

(3)  The full-time detainee is to be held in custody in a correctional centre for so long as is necessary for the detainee’s sentence referred to in the Australian Capital Territory direction to be executed in accordance with that direction.

(4)  Nothing in this section prevents the early release of a full-time detainee by reason of the operation of any law of the Commonwealth, or of the Australian Capital Territory, relating to the release of full-time detainees.

(5)  Until released from custody or delivered into the custody of an escort officer under an Australian Capital Territory direction, a full-time detainee may be dealt with as if the detainee’s sentence were a sentence passed under a law of New South Wales.

(6)  Subsection (5) is subject to the provisions of the Australian Capital Territory Act.

45   Return of full-time detainees to ACT

(1)  If an escort officer presents to a general manager of a correctional centre an Australian Capital Territory direction in respect of a full-time detainee held in custody in the correctional centre under this Division:

(a)  for the delivery of the full-time detainee into the custody of the escort officer, and

(b)  for the conveyance of the full-time detainee to the Australian Capital Territory,

      the general manager of the correctional centre must deliver the full-time detainee into the custody of the escort officer.

(2)  The direction is sufficient authority for the escort officer to convey the full-time detainee in custody to the Australian Capital Territory.

46   Evidentiary provision

A document purporting to be an Australian Capital Territory direction and to be under the hand of the chief executive is admissible in any proceedings and is in all courts exercising jurisdiction in New South Wales and on all occasions evidence of the particulars stated in the document.

Division 5 Prisoners received from Norfolk Island

47   Definitions

(1)  In this Division:

authorised person, constable, court, magistrate and order have the same meanings as they have in the Norfolk Island Act.

Norfolk Island Act means the Removal of Prisoners Act 2004 of Norfolk Island.

Norfolk Island warrant means a warrant issued under the Norfolk Island Act.

prisoner means a person who is liable to undergo imprisonment or other detention in custody under a law in force in Norfolk Island.

(2)  For the purposes of this Division, a reference to an order of a court or magistrate includes a reference to a warrant issued by a court or magistrate, other than a Norfolk Island warrant.

47A   Application of Division

This Division does not apply to a person who is the subject of a direction under section 9 of the Norfolk Island Act.

48   Conveyance and detention of prisoners from Norfolk Island

(1)  If a constable has a prisoner in custody in accordance with the terms of a Norfolk Island warrant, it is lawful for the constable to hold and deal with the prisoner in accordance with those terms.

(2)  It is the duty of the general manager of a correctional centre or any other officer doing duty at a correctional centre to accept custody of any prisoner the subject of a Norfolk Island warrant.

(3)  The prisoner is to be held in custody in a correctional centre for so long as is necessary for the order of the court or magistrate referred to in the Norfolk Island warrant to be executed in accordance with that warrant.

(4)  Nothing in this section prevents the early release of a prisoner by reason of the operation of any law of the Commonwealth, or of any law in force in Norfolk Island, relating to the release of prisoners.

(5)  Until released from custody or delivered into the custody of a constable under a Norfolk Island warrant, a prisoner may be dealt with as if the prisoner’s sentence were a sentence passed under a law of New South Wales.

(6)  Subsection (5) is subject to the provisions of the Norfolk Island Act.

49   Return of prisoners to Norfolk Island

(1)  If a constable presents to a general manager of a correctional centre a Norfolk Island warrant in respect of a prisoner held in custody in the correctional centre under this Division:

(a)  for the delivery of the prisoner into the custody of the constable, and

(b)  for the conveyance of the prisoner to Norfolk Island,

      the general manager of the correctional centre must deliver the prisoner into the custody of the constable.

(2)  The warrant is sufficient authority for the constable to convey the prisoner in custody to Norfolk Island.

50   Evidentiary provision

A document purporting to be a Norfolk Island warrant and to be signed by an authorised person is admissible in any proceedings and is in all courts exercising jurisdiction in New South Wales and on all occasions evidence of the particulars stated in the document.

Division 6 Correctional centre discipline

51   Definitions

In this Division:

correctional centre offence means any act or omission by an inmate (whether or not it is also a criminal offence):

(a)  that occurs while the inmate is within a correctional centre or correctional complex or is taken to be in the custody of the general manager of a correctional centre, and

(b)  that is declared by the regulations to be a correctional centre offence for the purposes of this Division.

criminal offence means an act or omission that constitutes an offence otherwise than as a consequence of its having been declared by the regulations to be a correctional centre offence for the purposes of this Division.

withdrawable privilege means a privilege or amenity that is declared by the regulations to be a withdrawable privilege for the purposes of this Division.

52   Hearing of charges by general manager

(1)  If it is alleged that an inmate of a correctional centre has committed a correctional centre offence, the general manager of the correctional centre may charge the inmate with the offence and conduct an inquiry into the allegation.

(2)  The following provisions apply to any such inquiry:

(a)  the inquiry must be conducted with as little formality and technicality, and with as much expedition, as fairness to the inmate charged, the requirements of this Act and the regulations and the proper consideration of the charge permit,

(b)  the general manager is not bound by the rules of evidence, but may inform himself or herself of any matter in such manner as the general manager thinks fit,

(c)  the inmate is entitled to be heard at any hearing during the inquiry and to examine and cross-examine witnesses,

(d)  except as provided by paragraph (e), the inmate is not entitled to be represented by an Australian legal practitioner or by any other person,

(e)  the general manager must allow a person (other than an Australian legal practitioner) to represent or assist the inmate if the general manager is satisfied:

(i)  that the inmate does not sufficiently understand the nature of the inquiry, or

(ii)  that the inmate does not understand English or is otherwise unable to properly represent himself or herself during the inquiry,

(f)  if the inmate refuses or fails to attend at any hearing during the inquiry, the general manager may hear and determine the matter in the inmate’s absence,

(g)  evidence is not to be given on oath or by affidavit at any hearing during the inquiry,

(h)  the general manager may allow any correctional officer or other person to be present, and to be heard, at any hearing during the inquiry,

(i)  the general manager may transfer the conduct of an inquiry to the general manager of another correctional centre to which the inmate has been transferred.

(3)  The regulations may make further provision for or with respect to the making of any such charge and the conduct of any such inquiry.

53   Penalties general manager may impose

(1)  If, after conducting an inquiry, the general manager is satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, the general manager may impose one (but not more than one) of the following penalties:

(a)  reprimand and caution,

(b)  deprivation, for up to 56 days, of such withdrawable privileges as the general manager may determine,

(c)  confinement to a cell for up to 7 days, with or without deprivation of withdrawable privileges,

(d)  cancellation of any right to receive payments under section 7 for up to 14 days, but to the extent only to which those payments are additional to the payments made at the base rate to inmates generally or to inmates of a class to which the inmate belongs.

(2)  If, after conducting an inquiry, the general manager is satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, but is of the opinion that a penalty should not be imposed:

(a)  the general manager may dismiss the charge, or

(b)  the general manager may defer imposing a penalty on condition that the inmate be of good behaviour for a specified period (not exceeding 2 months) and, if the condition is complied with, dismiss the charge after the end of that period.

(3)  If, after conducting an inquiry, the general manager is not satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, the general manager must dismiss the charge.

(4)  A penalty imposed on an inmate by the general manager may be revoked by the general manager or by the Commissioner.

54   Reference of offences to Visiting Magistrate

(1)  The general manager may refer a correctional centre offence with which an inmate is charged to a Visiting Magistrate for hearing and determination if the general manager considers that, because of the serious nature of the offence, it should be referred to a Visiting Magistrate.

(2)  A charge may be referred to a Visiting Magistrate without any inquiry being conducted by the general manager, or may be so referred during or after any such inquiry.

55   Hearing of charges by Visiting Magistrate

(1)  This section applies to proceedings on a charge that is referred to a Visiting Magistrate under this Division.

(2)  Subject to this section:

(a)  the Criminal Procedure Act 1986 applies to and in respect of the proceedings in the same way as it applies to and in respect of proceedings on a court attendance notice issued for a summary offence before the Local Court, and

(b)  any order or decision that is made by the Visiting Magistrate in or in connection with any such proceedings is taken to have been made under that Act.

(3)  In its application to the proceedings, the Criminal Procedure Act 1986 is subject to such modifications as are prescribed by the regulations and to such other modifications as the Visiting Magistrate considers appropriate.

(4)  An inmate is entitled to be represented by an Australian legal practitioner in the proceedings.

(5)  Any hearing in the proceedings is to be held:

(a)  in the correctional centre at which the inmate is in custody, or

(b)  if the Visiting Magistrate is satisfied that it is in the interests of the administration of justice for it to be held elsewhere—at any other place appointed by the Visiting Magistrate (an appointed place).

(5A)  If a Visiting Magistrate appoints an appointed place for the holding of any hearing in the proceedings, the Visiting Magistrate may do any of the following:

(a)  direct that the inmate must appear before the Visiting Magistrate by way of audio visual link from the correctional centre at which the inmate is in custody,

(b)  direct that any other inmate who gives evidence or makes a submission in the hearing is to do so by way of audio visual link from the correctional centre at which that inmate is in custody,

(c)  direct that any person other than an inmate who gives evidence or makes a submission is to do so by way of audio visual link from any place within New South Wales nominated by the Visiting Magistrate.

(5B)  The Visiting Magistrate must not make a direction referred to in subsection (5A) if:

(a)  the necessary audio visual facilities are unavailable or cannot reasonably be made available, or

(b)  the Visiting Magistrate is satisfied that the direction would be unfair to a party to the proceedings.

(5C)  Facilities are to be made available for private communication between an inmate appearing by way of audio visual link under this section and the inmate’s representative in the proceedings if the inmate’s representative attends the hearing at the appointed place.

(5D)  Any place at which a person appears, gives evidence or makes a submission by way of audio visual link under this section is taken to be part of the appointed place.

(5E)  Subsection (5D) has effect, for example, for the purposes of the laws relating to evidence, procedure, contempt of court or perjury.

(5F)  Subsection (5D) also has the effect that any offence committed at the place at which a person appears, gives evidence or makes a submission under this section by way of audio visual link is to be taken to have been committed at the appointed place.

(5G)  Sections 5D, 20A, 20B and 20D–20F of the Evidence (Audio and Audio Visual Links) Act 1998 apply, with such modifications as the Visiting Magistrate may direct, to proceedings in which a person appears, gives evidence or makes a submission by way of audio visual link under this section as they apply to the appearance, giving evidence or making of a submission by way of audio visual link in a proceeding before a NSW court under that Act.

(5H)  Nothing in this section prevents a direction under section 5BA (1) of the Evidence (Audio and Audio Visual Links) Act 1998being made in the proceedings.

(6)  If the inmate is transferred to another correctional centre, the Visiting Magistrate may transfer the proceedings to the Visiting Magistrate for the other correctional centre.

56   Penalties Visiting Magistrate may impose

(1)  If, after hearing the charge, the Visiting Magistrate is satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, the Visiting Magistrate may make an order imposing one (but not more than one) of the following penalties:

(a)  reprimand and caution,

(b)  deprivation, for up to 90 days, of such withdrawable privileges as the Visiting Magistrate may determine,

(c)  confinement to a cell for up to 28 days, with or without deprivation of withdrawable privileges,

(d)  cancellation of any right to receive payments under section 7 for up to 14 days, but to the extent only to which those payments are additional to the payments made at the base rate to inmates generally or to inmates of a class to which the inmate belongs,

(e)  extension, by up to 6 months at a time, of:

(i)  the term of the inmate’s sentence, and

(ii)  in the case of an offence occurring during a non-parole period of the inmate’s sentence, the non-parole period of the sentence,

(f)  imposition of a sentence of imprisonment for a period not exceeding 6 months.

(2)  If, after hearing the charge, the Visiting Magistrate is satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, but is of the opinion that a penalty should not be imposed, the Visiting Magistrate may dismiss the charge.

(3)  If, after hearing the charge, the Visiting Magistrate is not satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, the Visiting Magistrate must dismiss the charge.

(4)  To avoid doubt, a Visiting Magistrate making an order referred to in subsection (1) (f) is a person exercising criminal jurisdiction for the purposes of the definition of court in section 3 (1) of the Crimes (Sentencing Procedure) Act 1999.

56A   Penalty for use or possession of a mobile phone

(1)  The general manager or Visiting Magistrate dealing with a charge relating to a correctional centre offence arising out of the use or possession of a mobile phone or any part of it, a mobile phone SIM card or any part of it, or a mobile phone charger or any part of it may order that an inmate be deprived, for up to 6 months, of such withdrawable privileges as the general manager or Visiting Magistrate may determine if satisfied beyond reasonable doubt that the inmate is guilty of the offence.

(2)  To avoid doubt, if a penalty is imposed under this section in respect of a correctional centre offence, a general manager or Visiting Magistrate must not also impose a penalty referred to in section 53 or 56, as the case may be, in respect of the same correctional centre offence.

57   Drug tests for inmates

(1)  This section applies to a correctional centre offence arising out of:

(a)  the result of a test showing the presence of a drug in a non-invasive sample taken from or provided by an inmate, or

(b)  an inmate refusing or failing to provide, or enable to be taken, from the inmate a non-invasive sample when required to do so by a correctional officer of or above the rank of Assistant Superintendent.

(2)  The general manager or Visiting Magistrate dealing with a charge relating to an offence to which this section applies may order that an inmate be deprived, for up to 6 months, of such withdrawable privileges as the general manager or Visiting Magistrate may determine if satisfied beyond reasonable doubt that the inmate is guilty of the offence.

(3)  The general manager or Visiting Magistrate is not to make such an order if the inmate establishes that the drug:

(a)  was administered on and in accordance with the prescription of a registered medical practitioner or registered dentist, or

(b)  was lawfully supplied by, and taken in accordance with the instructions of, a registered medical practitioner, registered dentist or registered nurse, or

(c)  was taken or administered in such form or preparation as may be allowed by the regulations, or

(d)  was present in a quantity that does not exceed the quantity (if any) prescribed by the regulations, or

(e)  was not a drug within the meaning of this Act at the time it was taken by or administered to the inmate.

58   Certain offences may be dealt with by Local Court

If, during proceedings on a charge relating to a correctional centre offence, the Visiting Magistrate is of the opinion that the act or omission giving rise to the offence constitutes a criminal offence for which proceedings should be taken before a court, the Visiting Magistrate must terminate the proceedings and order that the inmate be brought before the Local Court to be dealt with according to law.

59   Compensation for property damage

(1)  If an inmate causes any loss of or damage to property as a result of committing a correctional centre offence, the general manager or Visiting Magistrate may, whether or not a penalty is imposed for the offence, order that the inmate pay to the Crown (or, if the property is owned by some other person, to that other person) a specified amount as compensation for the loss or damage.

(2)  The maximum amount of compensation that the general manager may order an inmate to pay is $500.

(3)  Compensation that an inmate is ordered to pay under this section is payable out of any money held by the general manager on behalf of the inmate or out of any other money otherwise payable to the inmate under this Act or the regulations.

60   Cumulative punishments

If:

(a)  an inmate is charged with 2 or more correctional centre offences, and

(b)  the charges are determined together or arise out of a single incident,

any cumulative penalties imposed for those offences must not, in respect of any particular kind of penalty, exceed the maximum penalty that may be imposed in relation to a single correctional centre offence.

61   Record of punishments for correctional centre offences

(1)  If a penalty is imposed on an inmate in relation to a correctional centre offence, the general manager must cause the following particulars to be recorded:

(a)  the nature and date of the offence,

(b)  the name of the inmate,

(c)  the date of sentence,

(d)  the penalty imposed,

(e)  any order for the payment of compensation.

(2)  The record must be kept at the correctional centre concerned and made available for inspection by such persons as the Commissioner considers appropriate.

(3)  The regulations may make provision for or with respect to the disposal of any such record.

62   Appeals against decisions of Visiting Magistrates

(1)  An appeal against a penalty imposed by a Visiting Magistrate under section 56 (1) (e) or (f) may be made to the District Court under Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 as if that penalty were a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.

(2)  The Crimes (Local Courts Appeal and Review) Act 2001 applies to an appeal arising under subsection (1) with such modifications as are made by or in accordance with the regulations under that Act.

(3)  The regulations may make provision for or with respect to the lodging and determination of appeals under this section.

(4)  Except as otherwise provided by this section, a decision of a Visiting Magistrate to impose a penalty on an inmate in proceedings under this Division is final and is not liable to be challenged, appealed against, quashed or called into question by any court.

63   Double jeopardy

(1)  For the purpose of determining whether proceedings for a criminal offence may be brought for the act or omission giving rise to a correctional centre offence, the decision of a Visiting Magistrate in proceedings for the correctional centre offence is taken to be the decision of a court in proceedings for a criminal offence.

(2)  Proceedings for a correctional centre offence are not to be commenced or continued under this Division if proceedings for a criminal offence have been commenced in a court for the act or omission giving rise to the correctional centre offence.

64   False or misleading statements

(1)  A person must not, in or in connection with any proceedings under this Division, make any statement that the person knows to be false or misleading in a material particular.

Maximum penalty: 5 penalty units.

(2)  This section does not apply to a statement verified by statutory declaration.

65   Offences may be dealt with by general manager of any correctional centre

A correctional centre offence may be dealt with under this Division by the general manager of a correctional centre, or by the Visiting Magistrate for a correctional centre, even though the offence was committed, or is alleged to have been committed, while the inmate was in another correctional centre or correctional complex or in the custody of the general manager of another correctional centre.

Division 7 Classification of serious offenders

66   Application of Division

This Division applies to any proposal for a recommendation by the Review Council under section 197 that a serious offender be given a security classification that would allow the offender to become eligible for unescorted leave of absence under a local leave permit or interstate leave permit (a low security classification).

67   Formulation of Review Council’s initial intention

(1)  As soon as practicable after a proposal is made that the Review Council recommend a low security classification for a serious offender, the Review Council is (subject to and in accordance with the regulations) required to give a preliminary notice of its intention to any victim of the offender whose name is recorded in the Victims Register.

(2)  The preliminary notice:

(a)  must state that a proposal for such a recommendation has been made, and

(b)  must state that there will be an opportunity for victims to make submissions to the Review Council about the making of such a recommendation, and

(c)  must specify a period of at least 14 days during which a victim may lodge with the Executive Officer and Registrar of the Review Council a notice of intention to make submissions to the Review Council.

68   Submissions by victims

A victim who receives a notice under section 67 may make a written submission to the Review Council about the proposed recommendation referred to in the notice.

69   Review Council to consider all submissions

The Review Council must consider all submissions made in accordance with this Division and must disregard all other submissions.

70   Decision following review

(1)  After reviewing all the reports, documents, submissions and other information placed before it in relation to a serious offender, the Review Council must decide whether or not to recommend a low security classification for the offender.

(2)  If the Review Council decides not to recommend a low security classification, the Review Council must cause the reasons for its decision to be recorded in its minutes.

71   Submissions by State

(1)  The State may at any time make submissions to the Review Council concerning the making of a low security classification for a serious offender.

(2)  If the State does so, the Review Council is not to make a final decision concerning the classification of the offender until it has taken any such submission into account.

(3)  The regulations may make provision for or with respect to submissions by the State under this section, including provisions relating to the application of this Division in connection with any such submission.

(4)  The powers of the State under this section may be exercised, subject to the regulations, by any agent of the State.

(5)  The power exercisable by the State under this section may also be exercised by the Australian Capital Territory in relation to a prisoner within the meaning of Division 4 and, for that purpose, references in this section to the State are taken to extend to the Australian Capital Territory.

Division 8 Miscellaneous

72   Custody of inmates

(1)  While held in custody in a correctional centre, an inmate is taken to be in the custody of the general manager of the correctional centre to which the inmate has been committed or (if the inmate has been transferred to another correctional centre in accordance with section 23 or 41C) the correctional centre to which the inmate has been transferred.

(2)  An inmate does not cease to be in the custody of the general manager of a correctional centre merely because the inmate is for the time being held in custody in some other part of a correctional complex (other than another correctional centre) of which the correctional centre forms part.

(3)  Despite any other provision of this Act, an inmate is not to be held in a police station or court cell complex for more than 7 days at a time.

72A   Medical attention

An inmate must be supplied with such medical attendance, treatment and medicine as in the opinion of a medical officer is necessary for the preservation of the health of the inmate, of other inmates and of any other person.

73   Compulsory medical treatment

(1)  A medical practitioner (whether that practitioner is a medical officer or not) may carry out medical treatment on an inmate without the inmate’s consent if the Chief Executive Officer, Justice Health is of the opinion, having taken into account the cultural background and religious views of the inmate, that it is necessary to do so in order to save the inmate’s life or to prevent serious damage to the inmate’s health.

(2)  Medical treatment carried out on an inmate under this section is, for all purposes, taken to have been carried out with the inmate’s consent.

(3)  Nothing in this section relieves a medical practitioner from liability in respect of the carrying out of medical treatment on an inmate, being a liability to which the medical practitioner would have been subject had the treatment been carried out with the inmate’s consent.

(4)  If the Chief Executive Officer, Justice Health is not a medical practitioner, the reference to the Chief Executive Officer, Justice Health in subsection (1) is taken to be a reference to a person, designated by the Chief Executive Officer for the purposes of that subsection, who is a medical practitioner.

74   Notice to coroner of inmate’s death

(1)  The general manager of a correctional centre must give written notice to a coroner immediately after becoming aware of the death of any inmate who is in the custody of the general manager.

(2)  For the purposes of the Coroners Act 1980, the receipt of such a notice from the general manager has the same effect as the receipt of information of a death from a police officer.

75   Confiscation of property

(1)  The Commissioner may confiscate any property (including any money) that is unlawfully in the possession of an inmate.

(2)  Property that is confiscated under this section becomes the property of the State, to be destroyed or otherwise disposed of as the Commissioner may direct.

(3)  The regulations may provide for the circumstances in which property is taken to be unlawfully in the possession of an inmate.

76   Sale of unclaimed property

(1)  The Commissioner may direct that any unclaimed property found within a correctional centre be sold or otherwise disposed of as the Commissioner may direct.

(2)  The proceeds of sale of unclaimed property are to be dealt with as if they were unclaimed money held by the Commissioner.

76A   Inmates’ money

(1)  Any money:

(a)  that is surrendered by an inmate on being taken into custody at a correctional centre, or

(b)  that is paid to an inmate pursuant to section 7, or

(c)  that is received by a correctional officer or other member of staff of the Department on an inmate’s behalf (other than money that it is unlawful for the inmate to acquire or retain possession of while in custody),

      is to be deposited in an authorised deposit-taking institution.

(2)  Until repaid, money so deposited may be invested by the Treasurer in any form of investment approved by the Treasurer.

(3)  Interest from any such investment may be applied for the benefit of inmates and their families in such manner as the Commissioner may determine.

77   Attendance of inmates before courts and court officers

(1)  If an appropriate authority is satisfied that:

(a)  it is necessary that an inmate should attend before it for the purposes of any legal proceeding, inquest or inquiry, and

(b)  the absence of the inmate may prejudice the rights of a party,

      the authority may make an order directing the Commissioner to cause the inmate to be produced at the court or other place at which the proceeding, inquest or inquiry is being, or is to be, held.

(2)  Such an order is sufficient authority for the general manager of the correctional centre in which the inmate is held to cause the inmate to be produced in accordance with the order.

(3)  An inmate produced in accordance with such an order is taken to be in lawful custody while in the actual custody of the general manager, a correctional officer, a sheriff’s officer or a police officer.

(4)  It is the duty of the person having actual custody of the inmate to return the inmate to the correctional centre from which the inmate was produced as soon as the appropriate authority permits.

(5)  In this section:

appropriate authority means:

(a)  a court, or

(b)  a coroner, or

(c)  the Independent Commission Against Corruption, or

(d)  a Royal Commission, or

(e)  the Victims Compensation Tribunal, or

(f)  the senior administrative officer (such as the clerk or registrar) of a court, or

(g)  a person prescribed by the regulations for the purposes of this definition.

correctional officer includes:

(a)  a person employed on a temporary basis within the Department to perform some or all of the duties of a correctional officer, and

(b)  a person holding an authority under section 240 to perform escort duties.

court includes the following:

(a)  the Children’s Court,

(b)  the Federal Court of Australia,

(c)  the Family Court of Australia,

(d)  the Federal Magistrates Court of Australia,

(e)  the Dust Diseases Tribunal,

(f)  any other court or body prescribed by the regulations for the purposes of this definition.

78   Use of dogs in maintaining good order and security

(1)  With the approval of the general manager of a correctional centre, a correctional officer may use a dog to assist in maintaining the good order and security of the correctional centre and any correctional complex of which the correctional centre forms part.

(2)  Without limiting subsection (1), such an approval may be given to the use of a dog for any of the following purposes:

(a)  the carrying out of searches within a correctional centre or correctional complex for any reason,

(b)  the tracking of an escaped inmate,

(c)  the escorting of inmates while they are being moved from one place to another,

(d)  the disarming of inmates,

(e)  the patrolling of correctional centres and correctional complexes,

(f)  the assisting of a police officer in the execution of the police officer’s functions.

(3)  At the request of the Director-General of the Department of Juvenile Justice, a correctional officer may use a dog to assist in the detection of drugs in a detention centre within the meaning of the Children (Detention Centres) Act 1987.

(4)  A correctional officer is not personally liable for injury or damage caused by the use of a dog that is under the correctional officer’s control if that use was in accordance with the general manager’s approval.

(5)  Subsection (4) does not apply if injury or damage occurs as a result of anything commanded to be done by a correctional officer maliciously and without reasonable and probable cause.

(6)  This section applies to a person employed as a custodian of inmates by the management company for a managed correctional centre in the same way as it applies to a correctional officer.

(7)  Nothing in this section limits the power of a correctional officer to use a dog under any other Act or law.

78A   Separation and other variations in conditions of custody of inmates

(1)  Nothing in this Act requires the conditions of custody of inmates to be the same for all inmates or for all inmates in the same correctional centre or of the same classification or designation, including conditions with respect to association with other inmates.

(2)  An inmate or group of inmates in a correctional centre may be held separately from other inmates in the correctional centre for the purposes of the care, control or management of the inmate or group of inmates.

(3)  In particular, inmates may be separated because of a requirement of this Act or the regulations, because of the classification or designation of the inmates, because of the nature of any program being undertaken by the inmates or because of any intensive monitoring that is required of the inmates.

(4)  The making of a segregated custody direction under Division 2 is not required to authorise a separation of inmates.

(5)  Anything done or omitted that could have been validly done or omitted if this section (and section 79 (c1)) had been in force when it was done or omitted is taken to be, and always to have been, validly done or omitted.

79   Regulations

The regulations may make provision for or with respect to the following matters:

(a)  the management, control, administration, supervision and inspection of correctional centres and correctional complexes,

(b)  the procedure to be followed when admitting an inmate into a correctional centre, including the procedure for accepting or refusing custody of property in an inmate’s possession when the inmate is admitted,

(c)  the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified,

(c1)  the designation of inmates for the purposes of or in connection with the management of security and other risks,

(d)  the procedure to be followed when releasing an inmate from a correctional centre, including the procedure for returning property accepted from an inmate when the inmate was admitted into the correctional centre,

(e)  the physical, psychological and spiritual welfare of inmates while in custody and following their release,

(f)  the kind of work that a convicted inmate may be directed to carry out under section 6 and the circumstances in which such a direction may be given,

(g)  the expenditure of money (or money’s worth) by inmates,

(h)  the circumstances in which an inmate may lawfully acquire or retain possession of property (including money) within a correctional centre,

(h1)  the forfeiture and disposal of an inmate’s abandoned or unclaimed property (including money), or of unhygienic or otherwise dangerous property (including money) received from, or sent to, an inmate,

(h2)  the seizure, forfeiture and destruction or other disposal of any property (including money):

(i)  brought into a correctional centre or correctional complex by any person in contravention of this Act, the regulations or any other law, or

(ii)  found within, sent to or delivered to a correctional centre or correctional complex and that it is unlawful for an inmate to acquire or retain possession of under this Act, the regulations or any other law,

(h3)  the seizure, forfeiture and destruction or other disposal of any drug, or any thing reasonably suspected of being a drug:

(i)  in the possession of an inmate, or

(ii)  in the possession of any other person in a correctional centre or correctional complex, or

(iii)  found within a correctional centre or correctional complex, or

(iv)  sent to or delivered to a correctional centre or correctional complex,

(i)  visits to inmates, including:

(i)  the days and times that visits may be allowed, and

(ii)  the maximum number of persons who may visit an inmate at the same time, and

(iii)  the classes of persons who may be prohibited from visiting inmates, and

(iv)  the conditions that must be observed by persons intending to visit an inmate before such a visit will be allowed, and

(v)  the procedures to be observed by visitors and inmates during visits,

(j)  the making and receiving of telephone calls by inmates,

(k)  the sending and receiving of letters and parcels by inmates, including the circumstances in which letters and parcels may be opened for inspection or confiscated,

(l)  the procedures to be followed by an inmate when applying for a local leave permit or interstate leave permit, and the circumstances under which such a permit may be issued,

(m)  the procedures to be followed by an inmate, and the facilities to be provided to an inmate, for the purpose of enabling the inmate to make a complaint to the general manager of the correctional centre or to any other person or body,

(n)  the observance by inmates of religious rites and obligations,

(o)  the acquisition by inmates of education and vocational training,

(p)  the provision to inmates of medical, surgical and dental treatment,

(q)  the distribution of condoms to inmates,

(r)  the circumstances in which a body search may be conducted on an inmate, the procedures to be followed in conducting a body search and the persons by whom, or in whose presence, a body search is to be conducted,

(s)  the circumstances in which a correctional officer may use force against an inmate, and the keeping of records of the occasions on which force is so used,

(t)  the circumstances in which a correctional officer may use firearms, and the keeping of records of the occasions on which firearms are so used,

(u)  the equipment that may be used to restrain an inmate, and the circumstances in which, and the maximum periods for which, an inmate may be restrained by means of such equipment,

(v)  the circumstances in which an inmate may be tested for drugs or alcohol, the use of a non-invasive sample provided by, or taken from, an inmate for the purposes of a test for drugs or alcohol and the nature of the tests to be used,

(v1)  analyses in connection with any such tests and the admission of certificates relating to the results of any such analyses as prima facie evidence in any proceedings for a correctional centre offence (within the meaning of section 51) being dealt with under this Act by a general manager or Visiting Magistrate,

(w)  (Repealed)

(x)  the appointment of medical officers for correctional centres,

(x1)  the appointment of ministers of religion and other spiritual advisors for correctional centres,

(y)  the functions of correctional officers and other staff employed within a correctional centre or correctional complex,

(z)  the form of any warrants issued for the purposes of this Part.

Part 3 Imprisonment by way of periodic detention

Introductory note. This Part applies to those offenders who have been sentenced to imprisonment by way of periodic detention. It deals with the following matters:

(a)  the general obligations of offenders (Division 1),

(b)  the way in which periodic detention orders are to be administered (Division 2),

(c)  offences relating to periodic detention (Division 3),

(d)  other miscellaneous matters (Division 4).

Division 1 Preliminary

80   Definitions

In this Part:

attendance order means an order directing an offender to participate in any activity, as referred to in section 84 (1) (a).

offender means a person in respect of whom a periodic detention order is in force.

work order means an order directing an offender to carry out community service work, as referred to in section 84 (1) (b).

81   Obligations of offender

The obligations of an offender while serving a sentence by way of periodic detention are:

(a)  to comply with such requirements of this Part and the regulations as apply to the offender, and

(b)  to comply with the requirements of any directions given to the offender under this Part, and

(c)  to inform the general manager responsible for the periodic detention centre to which the offender is for the time being required to report of any change in the offender’s residential address, and

(d)  to permit any correctional officer or other member of staff of the Department to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address.

82   Duration of periodic detention order

(1)  Unless sooner revoked, an offender’s periodic detention order expires:

(a)  at the end of the term of the sentence to which it relates, or

(b)  when the offender is released on parole,

      whichever occurs first.

(2)  Any detention period or part of a detention period during which an offender is in custody (whether in relation to the offence concerned or otherwise and whether as an inmate of a correctional centre or otherwise) is taken to have been served by the offender in accordance with this Part.

(3)  Nothing in this section affects the operation of section 89.

Division 2 Administration of periodic detention orders

83   Duty to report to periodic detention centre

(1)  An offender must report to a periodic detention centre at the beginning of each detention period:

(a)  in accordance with the requirements of the offender’s periodic detention order, as varied from time to time under section 85, or

(b)  if otherwise directed by the Commissioner, in accordance with the Commissioner’s directions.

(2)  If the regulations prescribe standards of cleanliness and sobriety to be complied with by an offender when reporting to a periodic detention centre, the offender complies with this section only if he or she complies with those standards.

84   Participation in activity or work

(1)  The Commissioner may make an order directing an offender:

(a)  to participate in any activity that the Commissioner considers conducive to the offender’s welfare or training, or

(b)  to carry out such community service work as the Commissioner considers suitable,

      during any one or more detention periods.

(1A)  An offender is not required to carry out community service work that the offender is not capable of carrying out.

(2)  Such an order may direct the offender to report to a periodic detention centre or to some other place approved by the Commissioner.

(3)  If:

(a)  an attendance order or work order directs an offender to report to some place other than a periodic detention centre for the purpose of participating in an activity or carrying out community service work, and

(b)  either:

(i)  the activity or community service work is not available there, or

(ii)  it is impracticable for the offender to participate in the activity or carry out the community service work there,

      the offender must report to such other place as the offender is directed to by the person identified in the order in that regard, and must do so in accordance with the directions of that person.

(4)  The Commissioner may make an order exempting an offender from serving the whole or any part of a detention period in a periodic detention centre if the offender is the subject of an attendance order or work order in force in respect of the whole or any part of that period.

(5)  An offender who is absent from a detention centre during any detention period by virtue of an attendance order or work order is taken to have served the detention period in accordance with this Part.

85   Variation of day, time and place for periodic detention

(1)  On the application of the offender or otherwise, the Commissioner may make an order varying any one or more of the following:

(a)  the times at which an offender’s detention period begins and ends,

(b)  the days comprising an offender’s detention period,

(c)  the periodic detention centre to which an offender must report,

      either in relation to one or more specified detention periods or in relation to all remaining detention periods to be served by the offender.

(2)  An order referred to in subsection (1) (a) must not be made so as to vary the number of hours for which an offender must attend a periodic detention centre during any detention period.

(3)  An order referred to in subsection (1) (b) must not be made so as to vary the number of detention periods to be served by an offender in relation to any particular sentence.

(4)  Immediately after making an order under this section in relation to an offender, the Commissioner must cause written notice of the terms of the order to be given to the offender.

86   Transfer of unruly offenders

(1)  If an offender behaves in such a manner as to disturb the peace and good order of a periodic detention centre, the general manager responsible for the periodic detention centre may order that the offender be transferred to a correctional centre for the remainder of the detention period.

(2)  An order under this section has effect according to its terms.

(3)  This section is subject to such provisions of the regulations as are made for the purposes of this section.

87   Leave of absence for failing to report

(1)  The Commissioner may grant an offender leave of absence for one or more detention periods:

(a)  for health reasons, or

(b)  on compassionate grounds, or

(c)  on the ground that the offender is in custody, or

(d)  for any other reason the Commissioner thinks fit.

(2)  Leave of absence under this section may be granted either before or after the detention period to which it relates.

(2A)  Leave of absence that is granted before the detention period to which it relates may be granted subject to such conditions as the Commissioner may determine.

(3)  Subject to subsections (4), (5) and (6), an application for leave of absence in respect of a detention period must be made before the time the offender is due to report for that period.

(4)  An offender who is unable to report for a detention period:

(a)  must cause a telephone call advising of the offender’s inability to report to be made, to such telephone number as the Commissioner may from time to time determine, before the time at which the offender is due to report, and

(b)  must cause a document setting out the reasons for the offender’s inability to report to be given to the general manager responsible for the relevant periodic detention centre within 7 days after the date on which the offender is due to report.

(5)  If the reasons for the offender’s inability to report include illness or injury, a certificate from a medical practitioner:

(a)  indicating the nature of the illness or injury, and

(b)  stating that the nature or extent of the illness or injury is such as to justify the offender’s inability to report,

      is to be given to the Commissioner in addition to or instead of the document referred to in subsection (4) (b).

(6)  Subject to subsection (5), an offender who complies with subsection (4) (a) and (b) is taken to have applied for leave of absence under subsection (3).

88   Leave of absence for reporting late

(1)  The Commissioner may grant an offender leave of absence for part or all of a detention period for which the offender has reported late if the Commissioner is satisfied that the offender has a reasonable excuse for having reported late.

(2)  An application for leave of absence made by an offender who reports late for a detention period must be made before the expiry of 7 days after the beginning of that period unless, in the particular circumstances of the case, the Commissioner allows further time for the application.

(3)  If leave of absence is granted for part of a detention period, the Commissioner may direct the offender to serve an equivalent period of time to that for which leave is granted:

(a)  immediately before the beginning, or at the end, of a detention period specified by the Commissioner, or

(b)  as part of an additional detention period to be served by the offender.

89   Failure to report or reporting late extends term of sentence

(1)  The sentence to be served by an offender who fails to report for one or more detention periods (whether or not leave of absence is granted) is, by this subsection, extended by one week for each detention period for which the offender fails to report.

(2)  The sentence to be served by an offender who reports late for one or more detention periods (otherwise than where leave of absence is granted) is, by this subsection, extended by one week for each detention period for which the offender reports late.

(3)  The sentence to be served by an offender:

(a)  who reports late for one or more detention periods, and

(b)  who is granted leave of absence subject to a requirement that an equivalent period of time to that for which leave is granted is to be served as part of an additional detention period,

      is, by this subsection, extended by one week for each additional detention period necessary to accommodate the total period of time directed to be served by all such directions given in relation to that sentence.

(4)  The sentence to be served by an offender who fails to report, or who reports late, for one or more detention periods (otherwise than where leave of absence is granted) is, by this subsection, further extended by one week for each detention period for which the offender fails to report or reports late.

(5)  An offender’s sentence may not be extended by subsection (4) by more than 6 weeks.

(6)  Any extension by subsection (4) of an offender’s sentence is in addition to any extension by subsection (1), (2) or (3) of that sentence with respect to the same failure to report or lateness in reporting.

(7)  In this section, a reference to the extension of an offender’s sentence is a reference to:

(a)  the extension of the term of the sentence, and

(b)  if the relevant failure to report or reporting late occurs during a non-parole period of the sentence, the extension of the non-parole period of the sentence.

(8)  If an offender has failed to report for a detention period but during that detention period is taken into custody (whether in relation to the offence concerned or otherwise and whether as an inmate of a correctional centre or otherwise), the offender is for the purposes of this section taken to have reported late for that detention period without leave of absence.

90   Commissioner may grant exemptions from extension of sentence

(1)  The Commissioner may make an order exempting an offender from the operation of section 89 (1), (2), (3) or (4) with respect to any one or more of the detention periods for which the offender has failed to report or has reported late.

(2)  The Commissioner must not refuse an application for an exemption made by the offender unless:

(a)  the offender has been given written notice of the Commissioner’s proposal to refuse the application, and

(b)  the offender has been given a reasonable opportunity to make submissions, either orally or in writing, as to why the exemption should be granted, and

(c)  the Commissioner has taken any such submissions into consideration.

91   Leave of absence at direction of Commissioner

(1)  The Commissioner may direct an offender to take leave of absence for one or more detention periods if of the opinion that:

(a)  the presence of the offender in a periodic detention centre, or

(b)  the participation of the offender in any activity under an attendance order, or

(c)  the carrying out by the offender of any community service work under a work order,

      would constitute a threat to the personal safety or health of the offender or any other person.

(2)  In particular, a direction may be given under this section if the offender or some other offender is suffering from an infectious disease.

92   Commissioner may grant exemptions for health reasons or on compassionate grounds

(1)  For health reasons or on compassionate grounds, the Commissioner may order that one or more detention periods yet to be served by an offender be regarded as having been served if satisfied that the offender is unlikely to be able to serve them within a reasonable time.

(2)  In determining what is a reasonable time, the Commissioner must have regard to the number of detention periods yet to be served and the likely duration of the offender’s inability to serve them.

(3)  Any detention period to which an order under this section relates is taken to have been served by the offender in accordance with this Part.

93   Appeal to Parole Authority from Commissioner’s refusal to grant leave of absence

(1)  On the application of an offender in respect of whom:

(a)  leave of absence for one or more detention periods has been refused under section 87, or

(b)  leave of absence for part or all of a detention period has been refused under section 88,

      the Parole Authority may direct that leave of absence be granted in respect of all or any of those detention periods, or part or all of the detention period, as the case requires.

(2)  The application may not be made later than 21 days after the date on which the original application for leave of absence was refused.

(3)  Subject to any order of the Parole Authority to the contrary, the making of an application under this section does not stay the operation of section 89 (1), (2), (3) or (4) with respect to any detention period to which the application relates.

(4)  An application under this section is only to be considered by the Parole Authority if it is satisfied that the application is not an abuse of process.

(5)  Leave of absence is taken to have been granted for each detention period (or part of a detention period) for which the Parole Authority makes a direction under this section.

94   Directions

(1)  An authorised officer may give directions to an offender (being directions not inconsistent with this Act or the regulations) for the purpose of enforcing the offender’s obligations with respect to periodic detention.

(2)  In this section, authorised officer means the Commissioner, the general manager responsible for the periodic detention centre attended by the offender or any correctional officer employed within that periodic detention centre.

Division 3 Offences

95   Offences

(1)  An offender who:

(a)  fails to comply with an attendance order or work order, or

(b)  fails to report to a periodic detention centre in accordance with an order under section 85 (1) (c) varying the periodic detention centre to which the offender must report, or

(c)  disobeys a direction under section 84 (3) or 94 (1), or

(d)  escapes or attempts to escape from lawful custody,

      is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2)  An offender who commits an offence against discipline is liable to be punished:

(a)  by caution or reprimand, or

(b)  by deprivation of specified amenities or privileges for up to 4 detention periods.

(3)  If an offender is punished for an offence against discipline in accordance with subsection (2), the offender is not liable to any further proceedings for the offence.

(4)  In this section, offence against discipline means any act or omission by an offender:

(a)  that occurs while the offender is within a periodic detention centre or is taken to be in the custody of the general manager responsible for a periodic detention centre, and

(b)  that is declared by the regulations to be an offence against discipline for the purposes of this Division.

96   Defences to prosecution for certain offences

(1)  If an offender is prosecuted for an offence of failing to comply with an attendance order or work order, it is a sufficient defence if the offender satisfies the court:

(a)  that the offender had a reasonable excuse for failing to comply with the order, and

(b)  that, before the offender was so required to comply or as soon as practicable afterwards, the offender had made that excuse known to the general manager responsible for the periodic detention centre to which the offender had previously been required to report.

(2)  If an offender is prosecuted for an offence involving an order under section 85 (1) (a), (b) or (c), it is a sufficient defence if the offender satisfies the court that written notice of the terms of the order was not given to the offender in sufficient time to enable the offender to comply with the order.

(3)  If an offender is prosecuted for an offence of failing to report to a periodic detention centre in accordance with an order under section 85 (1) (c), it is a sufficient defence if the offender satisfies the court:

(a)  that the offender had a reasonable excuse for failing to report in compliance with the order, and

(b)  that, before the offender was so required to report or as soon as practicable afterwards, the offender had made that excuse known to the general manager responsible for the periodic detention centre to which the order required the offender to report.

(4)  If an offender is prosecuted for an offence involving a direction under this Part, it is a sufficient defence if the offender satisfies the court:

(a)  that the direction was not communicated to the offender in sufficient time to enable the offender to comply with the direction, or

(b)  that the offender:

(i)  was complying with a provision of this Part or the regulations, and

(ii)  could not simultaneously comply with both the direction and that provision, or

(c)  that the offender:

(i)  was complying with some other direction under this Part, and

(ii)  could not simultaneously comply with both directions.

(5)  If an offender is prosecuted for an offence involving a provision of this Part or the regulations, it is a sufficient defence if the offender satisfies the court that the offender:

(a)  was complying with a direction under this Part, and

(b)  could not simultaneously comply with the direction and with that provision.

97   Penalty notices

(1)  An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Part or the regulations, being an offence prescribed by the regulations for the purposes of this section.

(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter dealt with by a court, the person may pay, within the time and to the person specified in the notice, the penalty prescribed by the regulations for the offence if dealt with under this section.

(3)  If the penalty prescribed for an alleged offence is paid in accordance with this section, no person is liable to any further proceedings for the alleged offence.

(4)  Payment in accordance with this section is not to be regarded as an admission of liability for the purposes of, nor is in any way to affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.

(5)  The regulations:

(a)  may prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and

(b)  may prescribe the penalty payable for the offence if dealt with under this section, and

(c)  may prescribe different penalties for different offences or classes of offences.

(6)  The penalty prescribed under this section in respect of an offence is not to exceed 2 penalty units.

(7)  This section does not limit the operation of this or any other Act in relation to proceedings that may be taken in respect of offences.

(8)  In this section, authorised officer means the Commissioner or any person authorised by the Commissioner for the purposes of this section.

Division 4 Miscellaneous

98   Application of Part 2 to periodic detention

(1)  This section applies to an offender:

(a)  while held in custody in a periodic detention centre for the purpose of serving the offender’s sentence, or

(b)  while held in custody in a correctional centre to which the offender has been transferred to serve the remainder of a detention period, or

(c)  while attending at a place outside a periodic detention centre in accordance with the requirements of an attendance order or work order, or

(d)  while travelling between a periodic detention centre and a place outside a periodic detention centre, or between different places outside a periodic detention centre, in accordance with the requirements of an attendance order or work order.

(2)  Subject to this Part:

(a)  the regulations may apply any of the provisions of Part 2 (subject to any modifications prescribed by the regulations), and the provisions of any regulations made under that Part, to and in respect of an offender to whom this section applies, and

(b)  any provision of Part 2 or of the regulations under that Part that is so applied has effect as if it formed part of this Part.

99   Custody of offenders

(1)  While held in custody in a periodic detention centre, an offender is taken to be in the custody of the general manager responsible for the centre or (if the offender is required to report to some other periodic detention centre in accordance with section 85 (1) (c)) of the general manager responsible for the periodic detention centre to which the offender is required to report.

(2)  An offender who is outside a periodic detention centre by virtue of an attendance order or work order is taken to be in the custody of the general manager responsible for the periodic detention centre in which the offender would, but for the order, be held in custody.

100   Community committees

(1)  The Minister may, by notification published in the Gazette, establish such committees (community committees) as the Minister thinks fit.

(2)  A community committee is to operate in respect of a particular geographical area specified in the notification establishing the committee.

(3)  A community committee is to consist of a person nominated by the Commissioner, who is to be chairperson of the committee, and such other persons as the Minister may appoint.

(4)  The functions of a community committee are to make recommendations to the Commissioner:

(a)  as to the nature and extent of the community service work that may be performed by offenders under work orders, and

(b)  as to any other matter referred to it by the Commissioner.

101   Regulations

The regulations may make provision for or with respect to the following matters:

(a)  the management, control, administration, supervision and inspection of periodic detention centres,

(b)  the procedure to be followed when admitting an offender into a periodic detention centre, including the procedure for accepting or refusing custody of property in an offender’s possession when the offender is admitted,

(c)  the procedures to be followed by an offender when applying for leave of absence under section 87 or 88, and the circumstances under which such leave of absence may be granted,

(d)  the procedures to be followed by an offender when applying for an exemption under section 90 or 92, and the circumstances under which such an exemption may be granted,

(e)  the procedures to be followed by an offender when making an appeal under section 93,

(f)  the circumstances in which an offender may be tested for drugs or alcohol, the use of a non-invasive sample provided by, or taken from, an offender for the purposes of a test for drugs or alcohol and the nature of the tests to be used,

(g)  the circumstances under which an offender may be required to submit to a medical examination by a medical officer,

(h)  the declaration of offences against discipline,

(i)  the day-to-day routine of offenders, including the performance of community service work within and outside a periodic detention centre,

(j)  the service of notices on an offender.

Part 4 Imprisonment by way of home detention

Introductory note. This Part applies to those offenders who have been sentenced to imprisonment by way of home detention. It deals with the conditions governing home detention and the general obligations of offenders.

102   Definition

In this Part:

offender means a person in respect of whom a home detention order is in force.

103   Conditions governing home detention

(1)  A home detention order is subject to the following conditions:

(a)  the standard conditions imposed by the regulations,

(b)  any additional conditions imposed by the sentencing court,

(c)  any additional conditions imposed by the Parole Authority under this section.

(2)  The Parole Authority may from time to time, by notice given to the offender:

(a)  impose additional conditions on a home detention order, or

(b)  vary or revoke any additional conditions imposed by it on a home detention order.

(3)  This section does not permit the Parole Authority:

(a)  to revoke any standard conditions imposed by the regulations or any additional conditions imposed by the sentencing court, or

(b)  to impose any additional conditions, or vary any additional conditions imposed by it, so as to be inconsistent with any standard conditions imposed by the regulations or any additional conditions imposed by the sentencing court.

104   Obligations of offender

The obligations of an offender while serving a sentence by way of home detention are:

(a)  to comply with such requirements of this Part and the regulations as apply to the offender, and

(b)  to comply with the requirements of any conditions to which the offender’s home detention order is subject, and

(c)  to permit any correctional officer or other member of staff of the Department to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address.

105   Duration of home detention order

Unless sooner revoked, an offender’s home detention order expires:

(a)  at the end of the term of the sentence to which it relates, or

(b)  when the offender is released on parole,

whichever occurs first.

106   Regulations

The regulations may make provision for or with respect to the following matters:

(a)  the standard conditions to be imposed on home detention orders, including:

(i)  conditions relating to an offender’s employment while the home detention order is in force, and

(ii)  conditions relating to the performance of community service work,

(b)  the manner in which an offender’s failure to comply with the offender’s obligations under a home detention order may be dealt with,

(c)  the service of notices on an offender.

Part 4A Imprisonment by way of compulsory drug treatment detention

Introductory note. This Part applies to those offenders who have been sentenced to imprisonment by the Drug Court for the purpose of undergoing compulsory drug treatment. It deals with the following matters:

(a)  a general description of the 3 stages of compulsory drug treatment detention and the general obligations of offenders (Division 1),

(b)  the way in which compulsory drug treatment orders are to be administered (Division 2),

(c)  the revocation of compulsory drug treatment orders (Division 3),

(d)  the role of the Drug Court as the parole authority for offenders (Division 4),

(e)  other miscellaneous matters (Division 5).

Division 1 Preliminary

106A   Definitions

In this Part:

community supervision order means an order by the Drug Court that imposes conditions on the offender in relation to the periods of time when the offender is not in the Compulsory Drug Treatment Correctional Centre.

Note. See section 106O.

Compulsory Drug Treatment Correctional Centre means the correctional centre given that name by a proclamation under section 225.

Director or Director of the Compulsory Drug Treatment Correctional Centre means the general manager of that correctional centre.

offender means a person in respect of whom a compulsory drug treatment order is in force.

progression order means an order by the Drug Court that an offender progress from one stage of compulsory drug treatment detention to a higher stage.

Note. See sections 106D and 106M.

regression order means an order by the Drug Court that an offender regress from one stage of compulsory drug treatment detention to a lower stage.

Note. See sections 106D and 106M.

revocation order means an order by the Drug Court that revokes an offender’s compulsory drug treatment order.

Note. See section 106Q.

106B   Objects of compulsory drug treatment

The objects of compulsory drug treatment are:

(a)  to provide a comprehensive program of compulsory treatment and rehabilitation under judicial supervision for drug dependent persons who repeatedly resort to criminal activity to support that dependency, and

(b)  to effectively treat those persons for drug dependency, eliminating their illicit drug use while in the program and reducing the likelihood of relapse on release, and

(c)  to promote the re-integration of those persons into the community, and

(d)  to prevent and reduce crime by reducing those persons’ need to resort to criminal activity to support their dependency.

106C   Obligations of offender

The obligations of an offender while serving a sentence by way of compulsory drug treatment detention are:

(a)  to comply with such requirements of this Part and the regulations as apply to the offender, and

(b)  to comply with the requirements of any compulsory drug treatment personal plan applying to the offender under this Part, and

(c)  to comply with the provisions of any other Part of this Act or the regulations applying to the offender under section 106V.

106D   Stages of compulsory drug treatment detention

(1)  There are 3 stages of compulsory drug treatment detention:

(a)  closed detention (Stage 1), and

(b)  semi-open detention (Stage 2), and

(c)  community custody (Stage 3).

(2)  Under closed detention (Stage 1), the offender is to be kept in full-time custody at the Compulsory Drug Treatment Correctional Centre.

(3)  Under semi-open detention (Stage 2), the offender is to be kept in the Compulsory Drug Treatment Correctional Centre and may be allowed to attend employment, training or social programs outside the Centre (as specified in the offender’s compulsory drug treatment personal plan).

(4)  Under community custody (Stage 3), the offender may reside outside the Compulsory Drug Treatment Correctional Centre at accommodation approved by the Drug Court under intensive supervision.

(5)  An offender allocated to, or by order progressed or regressed to, a stage of detention is in that stage of detention.

106E   Duration of compulsory drug treatment order

Unless sooner revoked, an offender’s compulsory drug treatment order expires:

(a)  at the end of the term of the sentence to which it relates, or

(b)  when the offender is released on parole,

whichever occurs first.

Division 2 Administration of compulsory drug treatment orders

Subdivision 1 Compulsory drug treatment personal plans

106F   Compulsory drug treatment personal plans

(1)  The Commissioner must, as soon as practicable after the making of a compulsory drug treatment order in relation to an offender, prepare a plan that imposes conditions on the offender regarding the offender’s drug treatment and rehabilitation during the period of operation of that order (the offender’s compulsory drug treatment personal plan).

(2)  An offender’s compulsory drug treatment personal plan comes into operation when it is approved by the Drug Court.

(3)  The Commissioner, when preparing a compulsory drug treatment personal plan, must consult the Chief Executive Officer, Justice Health or the Chief Executive Officer’s delegate.

(4)  The Drug Court may make recommendations to the Commissioner regarding the conditions to be included in an offender’s compulsory drug treatment personal plan.

(5)  A compulsory drug treatment personal plan may be approved by the Drug Court in the absence of the offender in respect of whom it is made.

(6)  The kinds of conditions that may be imposed on an offender in a compulsory drug treatment personal plan are as follows:

(a)  conditions relating to conduct and good behaviour,

(b)  conditions relating to attendance for counselling or other treatment,

(c)  conditions relating to the management of the offender in the Compulsory Drug Treatment Correctional Centre,

(d)  conditions relating to periodic drug testing that the offender must undergo,

(e)  conditions relating to involvement in activities, courses, training or employment for the purpose of promoting the re-integration of the offender into the community,

(f)  any other kinds of conditions that may be prescribed by the regulations,

(g)  such other conditions as the Commissioner considers appropriate in the circumstances,

(h)  such other conditions as the Drug Court considers appropriate in the circumstances.

(7)  The regulations referred to in subsection (6) (f) may deal with the following:

(a)  the form of compulsory drug treatment,

(b)  the provision of integrated case management services to the offender,

(c)  the key elements of non-pharmacotherapy drug treatment programs.

(8)  The regulations may make provision for or with respect to the following:

(a)  the preparation and implementation of compulsory drug treatment personal plans (including comprehensive individual assessments of offenders before the making of any such plans),

(b)  the role and responsibilities of an offender under the offender’s compulsory drug treatment personal plan,

(c)  the role and responsibilities of persons responsible for the offender’s care and treatment,

(d)  ongoing review and regular updating of compulsory drug treatment personal plans,

(e)  informing the Drug Court of the contents of offenders’ compulsory drug treatment personal plans.

(9)  The conditions of an offender’s compulsory drug treatment personal plan relating to periodic drug testing do not prevent any random drug testing of the offender.

106G   Variation of conditions of personal plan

(1)  The Commissioner may from time to time prepare a variation to an offender’s compulsory drug treatment personal plan that adds new conditions to, or varies or revokes existing conditions of, the plan.

(2)  A variation of an offender’s compulsory drug treatment personal plan comes into effect when it is approved by the Drug Court.

(3)  The Commissioner, when preparing a variation to a compulsory drug treatment personal plan, must consult the Chief Executive Officer, Justice Health or the Chief Executive Officer’s delegate.

(4)  A variation to a compulsory drug treatment personal plan may be approved by the Drug Court in the absence of the offender in respect of whom it relates.

106H   Mandatory conditions of all personal plans

It is a condition of each compulsory drug treatment personal plan that the offender:

(a)  must not use any drug other than a drug prescribed by a registered medical practitioner or registered dentist, and

(b)  must not resort to violence or make any threat of violence, and

(c)  must comply with any community supervision order made in relation to the offender, and

(d)  must not commit any further offences.

Note. The term drug is defined in section 3 of this Act to mean:

(a)  a prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985, or

(b)  any other substance declared by the regulations to be a drug for the purposes of this Act.

106I   Sanctions for non-compliance with personal plan

(1)  If the Commissioner is satisfied that an offender has failed to comply with any condition of the offender’s compulsory drug treatment personal plan, the Commissioner may impose any one or more of the sanctions specified in subsection (2).

(2)  The following kinds of sanctions may be imposed on an offender under this section:

(a)  withdrawal of privileges granted to the offender under section 106J (2) (a),

(b)  an increase in the level of the management of the offender in the Compulsory Drug Treatment Correctional Centre,

(c)  an application to the Drug Court to vary any community supervision order applying to the offender to increase the level of supervision to which the offender is subject,

(d)  an application to the Drug Court to vary the offender’s compulsory drug treatment personal plan to increase the frequency with which the offender must undergo periodic testing for drugs.

(3)  The Commissioner must refer an offender to the Drug Court if the Commissioner is of the opinion that the offender’s failure to comply with any condition of the offender’s compulsory drug treatment personal plan is of such a serious nature that it might warrant the Drug Court making any of the following:

(a)  a regression order,

(b)  a revocation order,

(c)  a variation of any community supervision order applying to the offender to increase the level of supervision to which the offender is subject.

(4)  Without affecting the other circumstances in which an offender is taken to have failed to comply with his or her compulsory drug treatment personal plan, if an offender is charged before a court with an offence referred to in section 5A (2) of the Drug Court Act 1998:

(a)  the offender is taken to have failed to comply with his or her compulsory drug treatment personal plan and that failure is taken to be of a serious nature, and

(b)  the Commissioner must refer the offender to the Drug Court.

(5)  Nothing in this section prevents:

(a)  the Commissioner from referring an offender to the Drug Court for any other reason, or

(b)  the Drug Court from dealing with an offender as it sees fit, including making any order under this Part.

106J   Rewards for compliance with personal plan

(1)  If the Commissioner is satisfied that an offender has maintained a satisfactory level of compliance with the offender’s compulsory drug treatment personal plan, the Commissioner may grant any one or more of the rewards specified in this section.

(2)  The following kinds of rewards may be granted to an offender under this section:

(a)  conferral of privileges,

(b)  a decrease in the level of the management of the offender in the Compulsory Drug Treatment Correctional Centre,

(c)  an application to the Drug Court to vary any community supervision order applying to the offender to decrease the level of supervision to which the offender is subject,

(d)  an application to the Drug Court to vary the offender’s compulsory drug treatment personal plan to decrease the frequency with which the offender must undergo periodic testing for drugs.

106K   No appeal from decisions of Drug Court or Commissioner

No appeal lies against the Drug Court or the Commissioner in relation to any decision made by the Drug Court or the Commissioner under this Subdivision.

Subdivision 2 Initial allocation and movement between stages of compulsory drug treatment detention

106L   New offenders in compulsory drug treatment detention allocated to Stage 1

On the making of a compulsory drug treatment order in relation to the offender’s sentence of imprisonment, the offender is automatically allocated to closed detention (Stage 1).

106M   Progression and regression between stages of detention

(1)  After an offender has served his or her sentence in closed detention (Stage 1) for a period of at least 6 months, the Drug Court may order that the offender progress to semi-open detention (Stage 2).

(2)  After an offender has served his or her sentence in semi-open detention (Stage 2) for a period of at least 6 months, the Drug Court may order that the offender progress to community custody (Stage 3).

(3)  If the Drug Court is satisfied, on the balance of probabilities, that an offender has failed to comply in a serious respect with any condition of the offender’s compulsory drug treatment personal plan, the Drug Court may order that an offender:

(a)  serving a sentence in semi-open detention (Stage 2) regress to closed detention (Stage 1), or

(b)  serving a sentence in community custody (Stage 3) regress to closed detention (Stage 1) or semi-open detention (Stage 2), as the Drug Court sees fit.

(4)  The regulations may make provision for or with respect to the criteria to be used by the Drug Court in determining whether to make a progression or regression order under this section.

(5)  No appeal lies against the Drug Court’s decision to make a progression or regression order under this section.

106N   Assessment reports

(1)  Before the Drug Court makes a progression order in relation to an offender, the Court is to have regard to the following reports prepared in relation to the offender:

(a)  an assessment report prepared by the Director of the Compulsory Drug Treatment Correctional Centre,

(b)  in relation to a progression order that would progress an offender to community custody (Stage 3), an assessment report prepared by a probation and parole officer,

(c)  any other report that the Drug Court considers relevant.

(2)  The Drug Court may, at any time, order that an assessment report on an offender be prepared.

(3)  The regulations may make provision for or with respect to the conduct of investigations and the preparation of reports for the purposes of this Part.

106O   Community supervision orders

(1)  On the making of a progression order in relation to an offender, the Drug Court must make an order (a community supervision order) that:

(a)  allows the offender to be absent from the Compulsory Drug Treatment Correctional Centre, and

(b)  imposes conditions on the offender in relation to the periods of time when the offender is not in the Compulsory Drug Treatment Correctional Centre.

(2)  The kinds of conditions that the Drug Court may impose on the offender under this section are as follows:

(a)  conditions relating to conduct and good behaviour,

(b)  conditions relating to the supervision of the offender outside the Compulsory Drug Treatment Correctional Centre,

(c)  conditions relating to drug testing that the offender must undergo,

(d)  conditions relating to residence, association with other persons or attendance at specified locations,

(e)  any other kinds of conditions that may be prescribed by the regulations,

(f)  such other conditions as the Drug Court considers appropriate in the circumstances.

(3)  The Drug Court when imposing any condition on an offender under this section is to have regard to and give substantial weight to any recommendations of the Commissioner.

(4)  The Drug Court may from time to time vary an offender’s community supervision order by adding new conditions to, or varying or revoking existing conditions of, the order.

(5)  No appeal lies against the Drug Court in relation to a decision regarding an order under this section.

106P   Commissioner of Corrective Services may make regression and removal orders in special circumstances

(1)  The Commissioner may order that an offender serving his or her sentence:

(a)  in semi-open detention (Stage 2) regress to closed detention (Stage 1), or

(b)  in community custody (Stage 3) regress to closed detention (Stage 1), or

(c)  in community custody (Stage 3) regress to semi-open detention (Stage 2).

(2)  The Commissioner may order that an offender serving his or her sentence in closed detention (Stage 1) or semi-open detention (Stage 2) be removed from the Compulsory Drug Treatment Correctional Centre and taken to another correctional centre and held in separate custody.

(3)  The Commissioner may make an order referred to in subsection (1) or (2) only if the Commissioner believes, on reasonable grounds, that:

(a)  the security of the community is threatened, or

(b)  the good order and discipline of a correctional centre may be jeopardised if the offender is not regressed or removed, or

(c)  the offender may be about to commit an offence, or

(d)  another reason exists to regress or remove the offender.

(4)  The Commissioner must immediately notify the Drug Court if the Commissioner makes an order under this section and must give the Drug Court his or her reasons for making the order.

(5)  Within 21 days (or such other period determined by the Drug Court) after receiving the notification of the Commissioner, the Drug Court must review the Commissioner’s order and make an order:

(a)  revoking the Commissioner’s order, or

(b)  confirming the Commissioner’s order, or

(c)  confirming the Commissioner’s order, but amending its terms, or

(d)  revoking, in accordance with section 106Q, the offender’s compulsory drug treatment order.

(6)  The Drug Court when reviewing a Commissioner’s order under subsection (5) is to have regard to and give substantial weight to any recommendations of the Commissioner.

(7)  No appeal lies against the Drug Court in relation to a decision regarding an order under subsection (5).

Division 3 Revocation of compulsory drug treatment order

106Q   Revocation of compulsory drug treatment order

(1)  The Drug Court may by order revoke an offender’s compulsory drug treatment order:

(a)  if:

(i)  the offender has failed to comply with a condition of the offender’s compulsory drug treatment personal plan, and

(ii)  that failure is of a serious nature, and

(iii)  in the opinion of the Drug Court, the offender:

(A)  is unlikely to make any further progress in the offender’s compulsory drug treatment program, or

(B)  poses an unacceptable risk to the community of re-offending, or

(C)  poses a significant risk of harming others or himself or herself, or

(b)  if the non-parole period for the offender’s sentence has expired or is about to expire and the offender is serving his or her sentence in closed detention (Stage 1) or semi-open detention (Stage 2), or

(c)  if the offender ceases to be an eligible convicted offender (within the meaning of the Drug Court Act 1998), or

(d)  for any other reason the Drug Court sees fit.

(2)  In making a decision under Part 6 as to whether to make a parole order for an offender whose compulsory drug treatment order has been revoked under this section, the Parole Authority is to have regard to the circumstances that led to the revocation.

(3)  No appeal lies against the Drug Court’s revocation of a compulsory drug treatment order.

106R   Effect of revocation order

(1)  A revocation order takes effect, or is taken to have taken effect, on the day on which it is made or on such earlier day as the Drug Court thinks fit.

(2)  If an offender is not taken into custody until after the day on which the revocation order takes effect:

(a)  the term of the offender’s sentence, and

(b)  if the order takes effect during a non-parole period of the sentence, the non-parole period of the sentence,

      are, by this subsection, extended by the number of days the offender was at large after the order took effect.

106S   Warrants committing offenders to correctional centres

(1)  If the Drug Court revokes a compulsory drug treatment order, it is to issue a warrant committing the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention.

(2)  A warrant under this section is sufficient authority:

(a)  for any police officer to arrest, or to have custody of, the offender named in the warrant, to convey the offender to the correctional centre specified in the warrant and to deliver the offender into the custody of the general manager of that correctional centre, and

(b)  for the general manager of the correctional centre specified in the warrant to have custody of the offender named in the warrant for the remainder of the sentence to which the warrant relates.

(3)  The regulations may make provision for or with respect to the form of any warrants issued for the purposes of this section.

Division 4 Parole for offenders in compulsory drug treatment detention

106T   Drug Court is parole authority for offenders in compulsory drug treatment detention

(1)  Part 6 applies to an offender who is serving a sentence by way of compulsory drug treatment detention, subject to the following:

(a)  references to the Parole Authority are taken to be references to the Drug Court,

(b)  references to the Chairperson of the Parole Authority are taken to be references to the Senior Judge of the Drug Court,

(c)  references to the Secretary of the Parole Authority are taken to be references to the registrar of the Drug Court,

(d)  any modifications of those provisions prescribed by the regulations.

(2)  On the release of an offender on parole under a parole order made by the Drug Court under Part 6 as applied in accordance with this section (and the consequent expiry of the offender’s compulsory drug treatment order under section 106E (b)), Part 7 applies to the offender in the same way as it applies to other offenders released on parole.

Note. This section provides that the Drug Court is the authority that will determine whether an offender serving a sentence by way of compulsory drug treatment detention is to be released on parole. Subsection (2) makes it clear that after release on parole (and the consequent expiry of the offender’s compulsory drug treatment order), the Parole Authority is responsible for the supervision and revocation of any parole order made in relation to the offender.

Division 5 Miscellaneous

106U   Formal assessment by Director

(1)  The Director is to cause regular assessment reports to be prepared setting out the progress of each offender’s drug treatment and rehabilitation and the offender’s compliance with his or her compulsory drug treatment personal plan.

(2)  An assessment report under this section is to be prepared in consultation with the Chief Executive Officer, Justice Health and the Drug Court.

(3)  The regulations may make provision for or with respect to assessment reports under this section, including but not limited to:

(a)  the frequency of such reports, and

(b)  the procedures that must be followed with respect to assessment of offenders.

106V   Application of Part 2 to Stages 1 and 2 compulsory drug treatment detention

(1)  Part 2 and the provisions of any regulations made under that Part, subject to any modifications prescribed by the regulations under this section, apply to and in respect of an offender who is in closed detention (Stage 1) or semi-open detention (Stage 2).

(2)  Any provision of Part 2 or of the regulations under that Part that is so applied has effect as if it formed part of this Part.

106W   Conviction and sentencing of offenders for old offences while compulsory drug treatment order is in force

(1)  If an offender is convicted and sentenced to a term of imprisonment (a new sentence) for an offence that occurred before the offender’s compulsory drug treatment order was made, the court that sentenced that offender is to refer the offender to the Drug Court to determine whether the offender’s compulsory drug treatment order should:

(a)  be varied so as to apply also in relation to the new sentence, or

(b)  be revoked.

(2)  The Drug Court may vary a compulsory drug treatment order so as to direct an offender to serve a new sentence of imprisonment by way of compulsory drug treatment detention.

(3)  Subject to subsection (4), the Drug Court must not vary a compulsory drug treatment order under this section unless the offender is an eligible convicted offender (within the meaning of the Drug Court Act 1998).

(4)  Despite section 5A (1) (b) of the Drug Court Act 1998, the Drug Court may vary a compulsory drug treatment order under this section if the cumulative unexpired non-parole period for the offender’s term of imprisonment under all sentences in force is greater than 3 years but not more than 4 years.

106X   Arrest warrants

(1)  If it suspects that an offender who is not serving the offender’s sentence of imprisonment in the Compulsory Drug Treatment Correctional Centre may have failed to comply with his or her compulsory drug treatment personal plan, the Drug Court may issue a warrant for the offender’s arrest.

(2)  A warrant under this section authorises any police officer to arrest the offender and to bring the offender before the Drug Court to be dealt with under this Act.

(3)  The Bail Act 1978 does not apply to an offender who is arrested on the authority of a warrant under this section.

(4)  The Drug Court’s functions under this section may be exercised by the registrar of the Drug Court.

106Y   Provision of information relating to offenders

(1)  This section applies to such persons as are prescribed by the regulations for the purposes of this section, being persons who are involved in the administration of, or who provide services in connection with, an offender’s drug treatment under this Part.

(2)  It is the duty of a person to whom this section applies:

(a)  to promptly notify the registrar of the Drug Court or the Commissioner of any failure by an offender to comply with the offender’s compulsory drug treatment personal plan, and

(b)  to promptly comply with the requirements of the regulations with respect to the giving of information to the registrar of the Drug Court or the Commissioner.

(3)  The following provisions apply to and in respect of any information (protected information) relating to an offender that is provided to the Drug Court or the Commissioner, or to any person to whom this section applies, by a person to whom this section applies:

(a)  the provision of the information does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct,

(b)  the provision of the information does not constitute a contravention of the Health Records and Information Privacy Act 2002 or the Privacy and Personal Information Protection Act 1998,

(c)  no liability for defamation is incurred because of the provision of the information,

(d)  the provision of the information does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy,

(e)  the information is not admissible in evidence in any proceedings before a court, tribunal or committee,

(f)  a person is not compellable in any proceedings before a court, tribunal or committee to disclose the information or to produce any document that contains the information.

(4)  The provisions of subsection (3) (e) and (f) do not apply to or in respect of the provision of protected information:

(a)  in proceedings before the Drug Court or any court hearing or determining an appeal from a decision of the Drug Court, or

(b)  in proceedings before the Parole Authority or any court hearing or determining an application in relation to a decision of the Parole Authority, or

(c)  in support of, or in answer to, any charge or allegation made in proceedings against a person in relation to the person’s exercise of functions under this Act.

(5)  An offender is taken to have authorised the communication of protected information:

(a)  from any person to whom this section applies to the registrar of the Drug Court or the Commissioner, and

(b)  from the registrar of the Drug Court or the Commissioner to any person to whom this section applies, and

(c)  from any member of staff of the Drug Court or the Department to any other member of staff of the Drug Court or the Department.

(6)  A provision of any Act or law that prohibits or restricts the disclosure of information does not operate to prevent the provision of information in accordance with this section.

106Z   Review of Compulsory Drug Treatment Correctional Centre

(1)  The Minister is to arrange for a review to be conducted of:

(a)  the compulsory drug treatment program, established under Part 2A of the Drug Court Act 1998 and this Part, during the first four years of the program’s operation, and

(b)  the provisions of the Drug Court Act 1998 and this Act relating to the compulsory drug treatment program and of any regulations made for the purposes of those provisions,

      in order to ascertain whether any of those provisions (or any other provisions of any other Act or regulations) should be amended.

(2)  The review is to commence as soon as practicable after the declaration of the Compulsory Drug Treatment Correctional Centre under section 225.

(3)  The Minister is to cause a report of the outcome of the review to be tabled in each House of Parliament as soon as practicable after its completion.

106ZA   Regulations

The regulations may make provision for or with respect to the following matters:

(a)  the administration of the compulsory drug treatment program,

(b)  the management, control, administration, supervision and inspection of the Compulsory Drug Treatment Correctional Centre,

(c)  the procedure to be followed when receiving an offender into the Compulsory Drug Treatment Correctional Centre, including the procedure for accepting or refusing custody of property in an offender’s possession when the offender is admitted,

(d)  the search and security procedures to be observed in the Compulsory Drug Treatment Correctional Centre,

(e)  visits to inmates in the Compulsory Drug Treatment Correctional Centre, including the following:

(i)  the days and times that visits may be allowed,

(ii)  the maximum number of persons who may visit an inmate at the same time,

(iii)  the classes of persons who may be prohibited from visiting an inmate,

(iv)  the conditions that must be observed by persons intending to visit an inmate before such a visit will be allowed,

(v)  the procedures to be observed by visitors and inmates during visits,

(f)  the use of electronic monitoring devices in relation to offenders in semi-open detention (Stage 2) or community custody (Stage 3),

(g)  the circumstances in which an offender may be tested for drugs (including random and periodic testing) and the type and nature of the tests to be used,

(h)  the circumstances under which an offender may be required to submit to a medical examination by a medical officer,

(i)  the declaration of offences against discipline,

(j)  the day-to-day routine of offenders,

(k)  the service of notices on an offender,

(l)  the provision of post release case management services and other services to offenders after release.

Part 5 Community service work and other work performed by offenders

Introductory note. This Part applies to those offenders who have been sentenced to community service work. It deals with the following matters:

(a)  the general obligations of offenders, the administration of community service orders and other miscellaneous matters (Division 1),

(b)  general provisions about community service work and other work performed by offenders (Division 2).

Division 1 Performance of community service work under community service orders

Subdivision 1 Preliminary

107   Definitions

In this Division:

assigned officer, in relation to an offender, means:

(a)  the probation and parole officer or other person for the time being assigned by the Commissioner to administer the offender’s community service order, or

(b)  any other person exercising the functions of an assigned officer in accordance with the regulations.

community service field officer means a person who is employed for the purpose of supervising offenders subject to community service orders while the offenders are performing community service work.

offender means a person in respect of whom a community service order is in force.

relevant maximum period, in relation to a community service order, means:

(a)  12 months from the date on which the order was made, if the required number of hours under the order (disregarding any increase under section 113) is less than 300, or

(b)  18 months from the date on which the order was made, if the required number of hours under the order (disregarding any increase under section 113) is 300 or more,

or, if that period is extended under section 114, the period as so extended.

required number of hours, in relation to a community service order, means the number of hours of community service work that the offender to whom the order relates is required by the order to perform.

108   Conditions governing community service work

A community service order is subject to the following conditions:

(a)  the standard conditions imposed by the regulations,

(b)  any additional conditions imposed by the sentencing court.

109   Obligations of offender

The obligations of an offender under a community service order are:

(a)  to comply with such requirements of this Part and the regulations as apply to the offender, and

(b)  to comply with the requirements of any conditions to which the offender’s community service order is subject, and

(c)  to comply with the requirements of any directions given to the offender under this Part, and

(d)  to inform the offender’s assigned officer of any change in the offender’s residential address.

110   Duration of community service order

(1)  Unless sooner revoked, a community service order remains in force:

(a)  until the offender has performed community service work in accordance with the offender’s obligations under the order for the required number of hours, or

(b)  until the expiry of the relevant maximum period, or

(c)  in the case of a community service order under section 79 of the Fines Act 1996, until the order is revoked or satisfied in accordance with that Act,

      whichever first occurs.

(2)  This section is subject to section 114.

Subdivision 2 Administration of community service orders

111   Assignment of officer by Commissioner

On receiving a copy of a community service order sent under section 93 of the Crimes (Sentencing Procedure) Act 1999 or section 80 of the Fines Act 1996, the Commissioner must assign a probation and parole officer or, if the regulations so provide, a person other than a probation and parole officer, to administer the order.

112   Performance of community service work

(1)  An offender:

(a)  must perform, for the required number of hours, such community service work as the offender’s assigned officer directs, and

(b)  while performing that work, must comply with the directions of the offender’s assigned officer and of the offender’s community service field officers from time to time.

(2)  In the case of a community service order that recommends that the work to be performed by the offender should include:

(a)  the removal or obliteration of graffiti from buildings, vehicles, vessels and places, and

(b)  the restoration of the appearance of buildings, vehicles, vessels and places consequent on the removal or obliteration of graffiti from them,

      the work performed by the offender must, if practicable, include such work.

(3)  Any work that the offender is directed to perform must be performed by the offender:

(a)  at such times as the offender’s assigned officer directs, and

(b)  in such manner as is satisfactory to the offender’s assigned officer.

(4)  If the regulations prescribe standards of cleanliness and sobriety to be complied with by an offender when reporting for community service work, the offender complies with this section only if he or she complies with those standards.

113   Increase in hours of community service work

(1)  The Commissioner may from time to time direct that an offender’s required number of hours be increased if of the opinion:

(a)  that the offender has failed, without reasonable excuse, to comply with the offender’s obligations under the order, and

(b)  that the offender’s failure to comply with those obligations was trivial in nature or that there are good reasons for excusing the offender’s failure to comply with those obligations.

(2)  An offender’s required number of hours, as increased under this section, must not be increased so as to exceed the required number of hours specified in the offender’s community service order by more than 10 hours.

(3)  On the application of the offender, the Local Court may review such a direction and, following the review, may confirm or revoke the direction.

Subdivision 3 Miscellaneous

114   Extension of period of community service order

(1)  An application for an extension of the relevant maximum period for an offender’s community service order may be made to the Local Court by the offender, or by the offender’s assigned officer, on the grounds that it would (having regard to circumstances that have arisen since the relevant community service order was made) be in the interests of justice to extend that period.

(2)  Such an application may be made even if the relevant maximum period for the community service order has expired.

(3)  If satisfied that the applicant has established the grounds on which the application is made, the Local Court:

(a)  may extend the relevant maximum period for the offender’s community service order, and

(b)  in that event, must cause notice of the extension to be sent to the offender’s assigned officer.

(4)  If an application to the Local Court for an extension of the relevant maximum period is made:

(a)  by the offender’s assigned officer, or by the offender with the written consent of the offender’s assigned officer, and

(b)  before the expiry of the relevant maximum period,

      the community service order is taken to remain in force, even if the relevant maximum period expires, until the application is determined by the Local Court.

115   Revocation of community service orders

(1)  An application for the revocation of an offender’s community service order may be made to the sentencing court, to a court of like jurisdiction or to a court that is superior to the sentencing court.

(2)  The application may be made:

(a)  by the offender’s assigned officer, on the grounds that the offender has failed, without reasonable excuse, to comply with the offender’s obligations under the order, or

(b)  by the offender, or by the offender’s assigned officer, on the grounds that it would (having regard to circumstances that have arisen since the relevant community service order was made) be in the interests of justice to revoke the order.

(2A)  The application cannot be made later than one month after the expiry of the relevant maximum period for the order.

(2B)  For the purpose only of determining an application under this section, a community service order is taken to be in force even if the relevant maximum period has expired.

(3)  If satisfied that the applicant has established the grounds on which the application is made, the court may revoke the offender’s community service order and (if it considers it appropriate to do so) deal with the offender in any manner in which it could have dealt with the offender had the order not been made.

(4)  An offender on whom a penalty is imposed as a consequence of the revocation of a community service order under this section has the same rights of appeal as if the penalty had been imposed when the offender was convicted of the offence to which the penalty relates.

(5)  A court that revokes an offender’s community service order under this section must cause notice of the revocation to be sent to the offender’s assigned officer.

(6)  For the purposes of this section:

(a)  failure by an offender to perform the required number of hours of community service work under a community service order within the relevant maximum period for the order is taken to constitute failure by the offender to comply with the offender’s obligations under the order, and

(b)  failure by an offender to comply with the offender’s obligations under one community service order (the primary failure) is taken to constitute failure by the offender to comply with the offender’s obligations under every other community service order that is in force when the primary failure occurs.

116   Summonses and warrants for attendance

(1)  The court to which an offender’s assigned officer makes an application:

(a)  for the extension of the period for which the offender’s community service order is to remain in force, or

(b)  for the revocation of the offender’s community service order,

      may call on the offender to appear before it.

(2)  If the offender fails to appear, the court may:

(a)  issue a warrant for the offender’s arrest, or

(b)  authorise an authorised officer to issue a warrant for the offender’s arrest.

(3)  If, however, at the time the assigned officer makes the application referred to in subsection (1), the court is satisfied that the location of the offender is unknown, the court may immediately:

(a)  issue a warrant for the offender’s arrest, or

(b)  authorise an authorised officer to issue a warrant for the offender’s arrest.

(4)  In this section:

authorised officer has the same meaning as it has in the Criminal Procedure Act 1986.

117   Regulations

The regulations may make provision for or with respect to the following matters:

(a)  the management, control, administration and supervision of community service orders,

(b)  the standard conditions to be imposed on community service orders, including conditions relating to the performance of community service work,

(c)  the procedure to be followed when an offender reports to carry out community service work,

(d)  the performance of community service work by an offender,

(e)  the circumstances in which an offender may be tested for drugs or alcohol, the use of a non-invasive sample provided by, or taken from, an offender for the purposes of a test for drugs or alcohol and the nature of the tests to be used,

(f)  the service of notices on an offender,

(g)  the functions of community service field officers and assigned officers appointed or employed for the purposes of this Division,

(h)  the form of any warrants issued for the purposes of this Division.

Division 2 General provisions concerning community service work and other work performed by offenders

118   Definitions

In this Division:

community service work means:

(a)  community service work performed by an offender while in full-time detention, and

(b)  community service work performed by an offender under a periodic detention order, and

(c)  community service work performed by an offender under a home detention order, and

(d)  community service work performed by an offender under a community service order, and

(e)  other work performed by an offender outside a correctional centre in accordance with section 6 (2).

offender means a person who is required to perform community service work:

(a)  while in full-time detention, or

(b)  under a periodic detention order, or

(c)  under a home detention order, or

(d)  under a community service order.

person involved, in relation to community service work, includes any person (including a corporation):

(a)  for whose benefit that work is performed, or

(b)  who directs or supervises that work, specifies its terms or conditions or controls it, or

(c)  who owns or occupies the premises or land on which that work is performed,

but does not include the offender by whom the work is performed.

119   Restrictions on directions regarding work to be performed

(1)  An offender must not be directed to carry out community service work if, in performing the work, the offender would take the place of any other person who would otherwise be employed in that work as a regular employee.

(2)  As far as practicable, a person giving directions to an offender:

(a)  must avoid any conflict with the offender’s religious beliefs, and

(b)  in the case of an offender performing community service work under a community service order, must avoid any interference with the times (if any) at which the offender normally works or attends a school or other educational establishment.

120   Act or omission of offender performing community service work

(1)  No act or omission of an offender by whom community service work is performed gives rise to civil liability on the part of any person involved in that work if the act or omission occurs in the course of that work.

(2)  A civil action that would, but for subsection (1), lie against a person involved in community service work lies instead against the Crown.

(3)  Subsections (1) and (2) do not have effect if the act or omission concerned was, or was a necessary part of, an act or omission that was expressly required by the person involved in that work but neither approved nor required by the Commissioner.

121   Act or omission of person involved in community service work

(1)  No act or omission of a person involved in community service work gives rise to civil liability towards the offender by whom the work is performed on the part of the person so involved if the act or omission occurs in the course of that work.

(2)  A civil action that would, but for subsection (1), lie against a person involved in community service work lies instead against the Crown.

(3)  Subsections (1) and (2) do not have effect if:

(a)  the work concerned was not work approved by the Commissioner, or

(b)  the act or omission concerned was, or was a necessary part of, an act or omission intended to cause injury, loss or damage.

122   (Repealed)

123   Disclosure of material facts about health

An offender in respect of whom a community service order is in force has, while the order is in force, a duty to disclose as soon as possible to the Commissioner:

(a)  any medical, physical or mental condition of which the offender is aware (being a condition of a kind that the offender is aware substantially increases the risk to the offender of injury in performing work of any kind), and

(b)  any substantial change in that condition.

124   Settlement of claims

The Commissioner may, on behalf of the Crown, settle any action that lies against the Crown because of this Division, and may do so on such terms as he or she thinks fit.

Part 6 Parole

Introductory note. This Part applies to the granting of parole to those offenders who are subject to sentences of imprisonment. It deals with the following matters:

(a)  eligibility for release on parole, the conditions to which parole is subject, the general obligations of offenders who are on release on parole and other provisions applying generally to parole (Division 1),

(b)  procedures for parole orders for sentences of more than 3 years (Division 2),

(c)  procedures for parole orders for sentences of 3 years or less (Division 3),

(d)  procedures for parole orders in exceptional circumstances (Division 4),

(e)  other miscellaneous matters (Division 5).

Division 1 Release on parole

125   Application of Part

This Part applies to:

(a)  an offender who is serving a sentence by way of full-time detention, and

(b)  an offender who is serving a sentence by way of periodic detention, and

(c)  an offender who is serving a sentence by way of home detention.

126   Eligibility for release on parole

(1)  Offenders may be released on parole in accordance with this Part.

(2)  An offender is eligible for release on parole only if:

(a)  the offender is subject to at least one sentence for which a non-parole period has been set, and

(b)  the offender has served the non-parole period of each such sentence and is not subject to any other sentence.

(3)  Nothing in this Part authorises the release of an offender who is required to be kept in custody in relation to an offence against a law of the Commonwealth.

(4)  An offender is not eligible for release on parole if the offender is the subject of a continuing detention order under the Crimes (Serious Sex Offenders) Act 2006.

127   Parole order necessary for release

An offender who is eligible for release on parole may not be released on parole except in accordance with a parole order directing the release of the offender.

128   Conditions of parole generally

(1)  A parole order is subject to the following conditions:

(a)  the standard conditions imposed by this Act or the regulations,

(b)  any additional conditions imposed by the sentencing court (including any conditions that are, under section 51 (1AA) of the Crimes (Sentencing Procedure) Act 1999, taken to be included in the order),

(c)  any additional conditions imposed by the Parole Authority under this section.

(2)  The Parole Authority may from time to time, by written notice given to the offender:

(a)  impose additional conditions on a parole order, or

(b)  vary or revoke any additional conditions imposed by it or by the sentencing court on a parole order.

(2A)  The conditions of a parole order must include conditions giving effect to a post-release plan, prepared by the Probation and Parole Service and adopted by the Parole Authority, in relation to the offender.

(3)  Without limiting subsection (2A), but subject to section 128B, the conditions of a parole order may include conditions requiring that the offender to whom the order relates be subject to supervision prescribed by the regulations, during the period specified by or under the order or the regulations.

(4)  This section does not permit the Parole Authority:

(a)  to revoke any standard conditions imposed by this Act or the regulations, or

(b)  to impose any additional conditions, or vary any additional conditions imposed by it or by the sentencing court, so as to be inconsistent with any standard conditions imposed by this Act or the regulations.

128A   Conditions of parole as to non-association and place restriction

(1)  The conditions to which a parole order is subject may include either or both of the following:

(a)  provisions prohibiting or restricting the offender from associating with a specified person,

(b)  provisions prohibiting or restricting the offender from frequenting or visiting a specified place or district.

(2)  A condition referred to in subsection (1) (a) or (b) is suspended:

(a)  while the offender is in lawful custody (otherwise than while unescorted as referred to in section 38 (2) (a)), and

(b)  while the offender is under the immediate supervision of a public servant employed within the Department of Juvenile Justice pursuant to a condition of leave imposed under section 24 of the Children (Detention Centres) Act 1987.

(3)  An offender does not contravene a prohibition or restriction as to his or her association with a specified person:

(a)  if the offender does so in compliance with an order of a court, or

(b)  if, having associated with the person unintentionally, the offender immediately terminates the association.

(4)  An offender does not contravene a requirement not to frequent or visit a specified place or district if the offender does so in compliance with an order of a court.

(5)  In this section, associate with means:

(a)  to be in company with, or

(b)  to communicate with by any means (including post, facsimile, telephone and email).

128B   Conditions of parole as to lifetime supervision

(1)  This section applies to an offender serving an existing life sentence within the meaning of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, being an offender in respect of whom a parole order is made as a consequence of the Supreme Court having set a non-parole period for the sentence (but not a specified term) under clause 4 of that Schedule.

(2)  It is a condition of a parole order for an offender to whom this section applies that, for the whole of the period for which the parole order is in force:

(a)  the offender is to be subject to supervision, as prescribed by the regulations, and

(b)  in relation to that supervision, the offender must comply with such obligations as the Commissioner may from time to time impose on the offender.

Note. Unless the parole order is sooner revoked, the effect of this provision is supervision for life.

(3)  This section does not permit the Commissioner to impose any obligations that are inconsistent with any standard conditions imposed by this Act or the regulations or any additional conditions imposed by the sentencing court or the Parole Authority.

129   Obligations of offender

The obligations of an offender while on release on parole are:

(a)  to comply with such requirements of this Part and the regulations as apply to the offender, and

(b)  to comply with the requirements of any conditions to which the offender’s parole order is subject.

(c)  (Repealed)

130   Revocation of parole order before release

(1)  The Parole Authority may, by order in writing and in such circumstances as may be prescribed by the regulations, revoke a parole order at any time before the offender to whom the order relates is released under the order.

(2)  Division 4 of Part 7 applies to the revocation of a parole order under this section in the same way as it applies to the revocation of a parole order under Division 3 of that Part.

131   Release under parole order

(1)  An offender’s parole order is sufficient warrant for any person having custody of the offender to release the offender in accordance with the terms of the order.

(2)  An offender who is released on parole under this Part is to be released from custody on the day specified in the relevant parole order in that regard (the parole date).

(3)  An inmate may be released from custody:

(a)  at any time on the parole date, or

(b)  if the parole date is a Saturday, Sunday or public holiday and the offender so requests, at any time during the next day that is not a Saturday, Sunday or public holiday.

131A   (Repealed)

132   Sentence continues to run while offender on parole

An offender who, while serving a sentence, is released on parole in accordance with the terms of a parole order is taken to continue serving the sentence during the period:

(a)  that begins when the offender is released, and

(b)  that ends when the sentence expires or (if the parole order is sooner revoked) when the parole order is revoked.

133   Parole order not invalidated by failure to comply with procedural requirements

A parole order is not invalid merely because of a failure by the Parole Authority or a court to comply with any procedural requirement imposed by or under this Act.

Division 2 Parole orders for sentences of more than 3 years

Subdivision 1 General

134   Application of Division

This Division applies to the making of a parole order for a sentence of more than 3 years for which a non-parole period has been set.

135   General duty of Parole Authority

(1)  The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest.

(2)  In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters:

(a)  the need to protect the safety of the community,

(b)  the need to maintain public confidence in the administration of justice,

(c)  the nature and circumstances of the offence to which the offender’s sentence relates,

(d)  any relevant comments made by the sentencing court,

(e)  the offender’s criminal history,

(f)  the likelihood of the offender being able to adapt to normal lawful community life,

(g)  the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole,

(h)  any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A,

(i)  any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council, the Commissioner or any other authority of the State,

(ia)  if the Drug Court has notified the Parole 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, the circumstances of that decision to decline to make the order,

(j)  such guidelines as are in force under section 185A,

(k)  such other matters as the Parole Authority considers relevant.

(3)  Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be considered for release on parole.

135A   Preparation of reports by Probation and Parole Service

A report prepared by or on behalf of the Probation and Parole Service for the purposes of section 135 must address the following matters:

(a)  the likelihood of the offender being able to adapt to normal lawful community life,

(b)  the risk of the offender re-offending while on release on parole, and the measures to be taken to reduce that risk,

(c)  the measures to be taken to assist the offender while on release on parole, as set out in a post-release plan prepared by the Probation and Parole Service in relation to the offender,

(d)  the offender’s attitude to the offence to which his or her sentence relates,

(e)  the offender’s willingness to participate in rehabilitation programs, and the success or otherwise of his or her participation in such programs,

(f)  the offender’s attitude to any victim of the offence to which his or her sentence relates, and to the family of any such victim,

(g)  any offences committed by the offender while in custody, including in particular any correctional centre offences and any offence involving an escape or attempted escape,

(h)  the likelihood of the offender complying with any conditions to which his or her parole may be made subject,

(i)  in the case of an offender in respect of whom the Drug Court has declined to make a compulsory drug treatment order on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the contents of any notice under section 18D (2) (b) of that Act.

Subdivision 2 Offenders other than serious offenders

136   Application of Subdivision

This Subdivision applies to offenders who are not serious offenders.

137   Consideration of parole when offender first eligible for parole

(1)  The Parole Authority must consider whether or not an offender should be released on parole at least 60 days before the offender’s parole eligibility date.

(2)  Despite subsection (1), the Parole Authority may defer consideration of an offender’s case until not less than 21 days before the offender’s parole eligibility date if it is of the opinion:

(a)  that it is unable to complete its consideration because it has not been furnished with a report required to be made to it, or

(b)  that there are other relevant matters requiring further consideration.

137A   Consideration of parole in subsequent years

(1)  At any time within 90 days before an offender’s annual review date, the offender, if still eligible for release on parole, may apply to be released on parole.

(1A)  For the purposes of this section, an offender’s annual review date occurs on each anniversary of the offender’s parole eligibility date.

(2)  After receiving such an application, but not more than 60 days before the offender’s annual review date, the Parole Authority must consider whether or not the offender should be released on parole.

(3)  Despite subsection (2):

(a)  if the offender is unlawfully at large following revocation of parole, the Parole Authority is not required to consider the offender’s case until the offender is returned to custody, and

(b)  if the offender is unlawfully at large for the whole of one or more years following the revocation, the Parole Authority may decline to consider the offender’s case at all in relation to that year or those years, and

(c)  in any case, the Parole Authority may decline to consider an offender’s case for up to 3 years at a time after it last considered the grant of parole to the offender.

137B   Consideration of parole so as to avoid manifest injustice

The Parole Authority may consider an offender’s case at any time after the offender’s parole eligibility date, and without the need for an application, in such circumstances as may be prescribed by the regulations as constituting manifest injustice.

137C   Parole Authority may examine offender

(1)  For the purpose of its consideration of an offender’s case, the Parole Authority may (but need not) examine the offender.

(2)  An offender is not entitled to make submissions to the Parole Authority at any meeting held by it for the purposes of this section, and consequently section 190 (1) does not apply to any such meeting.

138   Release of offender on parole

(1)  As soon as practicable after deciding to release an offender on parole, the Parole Authority must make an order directing that the offender be released on parole on a day occurring during a period specified in accordance with subsection (1AA).

(1AA)  The period to be specified in a parole order under this section is to be:

(a)  if the order is made earlier than the offender’s parole eligibility date, a period beginning no earlier than the offender’s parole eligibility date and ending no later than 35 days after that date, and

(a1)  if the order is made following an application by the offender referred to in section 137A, and is made before the offender’s annual review date (within the meaning of that section), a period beginning no earlier than the offender’s annual review date and ending no later than 35 days after that date, and

(b)  in any other case, a period beginning no earlier than the date on which the order is made and ending no later than 35 days after that date.

(1A)  In determining a day on which to release a violent offender under subsection (1), the Parole Authority must take into account the potential trauma to a victim and the victim’s family if the offender is released on the anniversary of the commission of the offence against the victim.

(1B)  For the purposes of this section, a violent offender means an offender who is serving a sentence for an offence involving violence against a person, including any type of sexual assault referred to in clause 6 of Schedule 1 to the Victims Support and Rehabilitation Act 1996.

(2)  Nothing in subsection (1) affects the power of the Parole Authority to amend or repeal an order as referred to in section 43 (2) of the Interpretation Act 1987.

139   Notice to offender of decision to refuse parole

(1)  As soon as practicable after deciding not to make a parole order for an offender, the Parole Authority:

(a)  must give notice of its decision to the offender, and

(b)  must determine whether, in relation to any reconsideration of the matter:

(i)  there will be a hearing, whether or not the offender requests a hearing, or

(ii)  there will be a hearing only if the offender requests a hearing and the Parole Authority is satisfied that a hearing is warranted.

(2)  The notice must inform the offender of the following matters:

(a)  that the Parole Authority’s decision is not to make a parole order in relation to the offender,

(b)  that the offender may apply to the Parole Authority for the matter to be reconsidered,

(c)  that, if the offender makes such an application:

(i)  there will be a hearing, whether or not the offender requests a hearing, or

(ii)  there will be a hearing only if the offender requests a hearing and the Parole Authority is satisfied that a hearing is warranted,

(d)  that the Parole Authority will take into account any submissions by the offender when making its final decision on the matter.

(3)  The notice:

(a)  must indicate the address to which such an application should be sent, and the date by which such an application must be made, and

(b)  subject to section 194, must be accompanied by copies of the reports and other documents intended to be used by the Parole Authority in making its final decision.

(4)  An application by an offender under this section:

(a)  may be accompanied by written submissions in support of the application, and

(b)  if the notice to the offender states that there will be a hearing only if the application requests a hearing, may request a hearing.

(5)  If there is to be a hearing, the Parole Authority:

(a)  must set a date (occurring as soon as practicable) on which the hearing will be conducted, and

(b)  must give notice to the offender of the date, time and place for the hearing.

140   Conduct of hearing

(1)  At any hearing conducted by the Parole Authority pursuant to an application under section 139, the offender may make submissions to the Parole Authority as to whether or not the offender should be released on parole.

(2)  Submissions may be made orally or in writing and, if in writing, may be given to the Parole Authority either in advance of or at the hearing.

(3)  The Parole Authority may postpone or adjourn a hearing for any reason that seems appropriate to it.

141   Decision following review

(1)  After reviewing all the reports, documents, submissions and other information placed before it, the Parole Authority must decide:

(a)  whether or not the offender should be released on parole, or

(b)  whether, for reasons specified by the Parole Authority in its minutes, the question of whether or not the offender should be released on parole should be deferred.

(2)  The question of whether or not the offender should be released on parole:

(a)  may be deferred once only, and

(b)  may not be deferred for more than 2 months.

(3)  If the Parole Authority decides that the offender should be released on parole, the Parole Authority must make an order directing the release of the offender on a day occurring during a period specified in accordance with subsection (3AA).

(3AA)  The period to be specified in a parole order under this section is to be:

(a)  if the order is made earlier than the offender’s parole eligibility date, a period beginning no earlier than the offender’s parole eligibility date and ending no later than 35 days after that date, and

(b)  in any other case, a period beginning no earlier than the date on which the order is made and ending no later than 35 days after that date.

(3A)  In determining when a violent offender should be released, the Parole Authority must take into account the potential trauma to a victim and the victim’s family if the offender is released on the anniversary of the commission of the offence against the victim.

(3B)  For the purposes of this section, a violent offender means an offender who is serving a sentence for an offence involving violence against a person, including any type of sexual assault referred to in clause 6 of Schedule 1 to the Victims Support and Rehabilitation Act 1996.

(4)  If the Parole Authority decides that the offender should not be released on parole, the Parole Authority:

(a)  (Repealed)

(b)  must cause notice that it does not intend to make a parole order to be served on the offender.

141A   Submissions by Commissioner

(1)  The Commissioner may at any time make submissions to the Parole Authority concerning the release on parole of an offender.

(2)  If the Commissioner makes any such submission before the Parole Authority makes a final decision concerning the release of the offender, the Parole Authority must not make such a decision without taking the submission into account.

(3)  If the Commissioner makes any such submission after the Parole Authority makes a final decision concerning the release of the offender, but before the offender is released, the Parole Authority must consider whether or not it should exercise its power under section 130 to revoke the relevant parole order.

(4)  The regulations may make provision for or with respect to submissions by the Commissioner under this section, including provisions relating to the application of this Subdivision in connection with any such submission.

Subdivision 3 Serious offenders

142   Application of Subdivision

This Subdivision applies to serious offenders.

143   Consideration of parole when serious offender first eligible for parole

(1)  The Parole Authority must consider whether or not a serious offender should be released on parole at least 60 days before the offender’s parole eligibility date.

(2)  Despite subsection (1), the Parole Authority may defer consideration of an offender’s case until not less than 21 days before the offender’s parole eligibility date if it is of the opinion:

(a)  that it is unable to complete its consideration because it has not been furnished with a report required to be made to it, or

(b)  that there are other relevant matters requiring further consideration.

143A   Consideration of parole in subsequent years

(1)  At any time within 90 days before an offender’s annual review date, the offender, if still eligible for release on parole, may apply to be released on parole.

(1A)  For the purposes of this section, an offender’s annual review date occurs on each anniversary of the offender’s parole eligibility date.

(2)  After receiving such an application, but not more than 60 days before the offender’s annual review date, the Parole Authority must consider whether or not the offender should be released on parole.

(3)  Despite subsection (2):

(a)  if the offender is unlawfully at large following revocation of parole, the Parole Authority is not required to consider the offender’s case until the offender is returned to custody, and

(b)  if the offender is unlawfully at large for the whole of one or more years following the revocation, the Parole Authority may decline to consider the offender’s case at all in relation to that year or those years, and

(c)  in any case, the Parole Authority may decline to consider an offender’s case for up to 3 years at a time after it last considered the grant of parole to the offender.

143B   Consideration of parole so as to avoid manifest injustice

The Parole Authority may consider a serious offender’s case at any time after the offender’s parole eligibility date, and without the need for an application, in such circumstances as may be prescribed by the regulations as constituting manifest injustice.

143C   Parole Authority may examine serious offender

(1)  For the purpose of its consideration of a serious offender’s case, the Parole Authority may (but need not) examine the offender.

(2)  A serious offender is not entitled to make submissions to the Parole Authority at any meeting held by it for the purposes of this section, and consequently section 190 (1) does not apply to any such meeting.

144   Formulation of Parole Authority’s initial intention

On or immediately after giving its preliminary consideration as to whether or not a serious offender should be released on parole, the Parole Authority must formulate and record its initial intention either:

(a)  to make a parole order in relation to the offender, or

(b)  not to make such a parole order.

145   Notice to victims of intention to grant parole

(1)  As soon as practicable after forming an initial intention to make a parole order for a serious offender, but subject to and in accordance with the regulations, the Parole Authority must give notice of its intention to those victims of the offender (if any) whose names are recorded in the Victims Register.

(2)  The notice must inform each victim concerned of the following matters:

(a)  that the Parole Authority’s initial intention is to make a parole order in relation to the offender,

(b)  that the victim may apply to the Parole Authority for the matter to be reconsidered,

(c)  that, if the victim makes such an application, there will be a hearing only if the application requests a hearing,

(d)  that the Parole Authority will take into account any submissions by the victim when making its final decision on the matter.

(3)  The notice must indicate the address to which such an application should be sent and the date by which such an application must be made.

(4)  An application by a victim under this section:

(a)  may be accompanied by written submissions in support of the application, and

(b)  may request a hearing.

(5)  If the application requests a hearing, the Parole Authority:

(a)  must set a date (occurring as soon as practicable) on which the hearing will be conducted, and

(b)  must give notice to the Commissioner, the offender and the victim of the date, time and place for the hearing.

(6)  The notice to the offender under subsection (5) (b) must include the following information:

(a)  that the Parole Authority’s initial intention is to make a parole order,

(b)  that there will be a hearing conducted for the purpose of reconsidering the matter,

(c)  that, following the hearing, the Parole Authority could change its intention,

(d)  that the offender will be entitled to make submissions at the hearing as to whether or not the offender should be released on parole,

(e)  that other submissions may be made at the hearing by the State and by victims of the offender.

(7)  In circumstances where, under subsection (1), notice need not be given of its initial intention, the Parole Authority may, subject to section 152, proceed immediately to confirm its intention.

146   Notice to serious offender of intention to refuse parole

(1)  As soon as practicable after forming an initial intention not to make a parole order for a serious offender, the Parole Authority:

(a)  must give notice of its intention to the offender, and

(b)  must determine whether, in relation to any reconsideration of the matter:

(i)  there will be a hearing, whether or not the offender requests a hearing, or

(ii)  there will be a hearing only if the offender requests a hearing and the Parole Authority is satisfied that a hearing is warranted.

(2)  The notice must inform the offender of the following matters:

(a)  that the Parole Authority’s initial intention is not to make a parole order in relation to the offender,

(b)  that the offender may apply to the Parole Authority for the matter to be reconsidered,

(c)  that, if the offender makes such an application:

(i)  there will be a hearing, whether or not the offender requests a hearing, or

(ii)  there will be a hearing only if the offender requests a hearing and the Parole Authority is satisfied that a hearing is warranted,

(d)  that the Parole Authority will take into account any submissions by the offender when making its final decision on the matter.

(3)  The notice:

(a)  must indicate the address to which such an application should be sent, and the date by which such an application must be made, and

(b)  subject to section 194, must be accompanied by copies of the reports and other documents intended to be used by the Parole Authority in making its final decision.

(4)  An application by an offender under this section:

(a)  may be accompanied by written submissions in support of the application, and

(b)  if the notice to the offender states that there will be a hearing only if the application requests a hearing, may request a hearing.

(5)  If there is to be a hearing, the Parole Authority:

(a)  must set a date (occurring as soon as practicable) on which the hearing will be conducted, and

(b)  must give notice to the Commissioner, the offender and, subject to and in accordance with the regulations, to those victims of the offender (if any) whose names are recorded in the Victims Register, of the date, time and place for the hearing.

(6)  The notice to a victim under subsection (5) (b) must include the following information:

(a)  that the Parole Authority’s initial intention is not to make a parole order,

(b)  that there will be a hearing for the purpose of reconsidering the matter,

(c)  that, following the hearing, the Parole Authority could change its intention,

(d)  that the victim will be entitled to make submissions at the hearing as to whether or not the offender should be released on parole,

(e)  that other submissions may be made at the hearing by the State and by the offender.

147   Conduct of hearing

(1)  At any hearing conducted by the Parole Authority pursuant to an application under section 145 or 146, both the offender and any victim of the offender may make submissions to the Parole Authority as to whether or not the offender should be released on parole.

(2)  Submissions may be made orally or in writing and, if in writing, may be given to the Parole Authority either in advance of or at the hearing.

(3)  The Parole Authority may postpone or adjourn a hearing for any reason that seems appropriate to it.

148   Principles on which Parole Authority’s final decision to be made

(1)  The Parole Authority is to make its final decision as to whether or not to make a parole order on the following principles:

(a)  that the Parole Authority will confirm its initial intention to make a parole order if there are no submissions to the contrary or if it is not required to seek victim submissions,

(b)  that the Parole Authority will reconsider its initial intention to make a parole order if there are submissions to the contrary, and will in that event take into account any offender submissions,

(c)  that the Parole Authority will confirm its initial intention not to make a parole order if there are no offender submissions,

(d)  that the Parole Authority will reconsider its initial intention not to make a parole order if there are offender submissions, and will in that event take into account any other submissions.

(2)  The Parole Authority must consider all submissions made in accordance with this Subdivision and, subject to section 185 (2), must disregard all other submissions.

149   Decision following review

(1)  After reviewing all the reports, documents, submissions and other information placed before it, the Parole Authority must decide:

(a)  whether or not the offender should be released on parole, or

(b)  whether, for reasons specified by the Parole Authority in its minutes, the question of whether or not the offender should be released on parole should be deferred.

(2)  The question of whether or not the offender should be released on parole:

(a)  may be deferred once only, and

(b)  may not be deferred for more than 2 months.

(3)  If the Parole Authority decides than the offender should be released on parole, it must make an order directing the release of the offender on parole on a day occurring during a period specified in accordance with section 151.

(4)  If the Parole Authority decides that the offender should not be released on parole, the Parole Authority:

(a)  (Repealed)

(b)  must cause notice that it does not intend to make a parole order to be served on the offender.

150   Decision where no review

(1)  The Parole Authority must confirm its initial intention to make a parole order if there are no victim submissions or other submissions to the contrary or if it is not required to seek victim submissions.

(2)  The Parole Authority must confirm its initial intention not to make a parole order if there are no offender submissions.

(3)  If the Parole Authority confirms its initial intention to make a parole order, it must make an order directing the release of the offender on parole on a day occurring during a period specified in accordance with section 151.

(4)  If the Parole Authority confirms its initial intention not to make a parole order:

(a)  (Repealed)

(b)  it must cause notice that it does not intend to make a parole order to be served on the offender.

151   Release of serious offender on parole

(1)  The period to be specified in a parole order under section 149 or 150 is to be:

(a)  if the order is made earlier than 14 days before the offender’s parole eligibility date, a period beginning no earlier than the offender’s parole eligibility date and ending no later than 21 days after that date, and

(a1)  if the order is made following an application by the offender referred to in section 143A, and is made before the offender’s annual review date (within the meaning of that section), a period beginning no earlier than the offender’s annual review date and ending no later than 35 days after that date, and

(b)  in any other case, a period beginning no earlier than 14 days after the date on which the order is made and ending no later than 35 days after that date.

(1A)  In determining a day on which to release a violent offender under subsection (1), the Parole Authority must take into account the potential trauma to a victim and the victim’s family if the offender is released on the anniversary of the commission of the offence against the victim.

(1B)  For the purposes of this section, a violent offender means an offender who is serving a sentence for an offence involving violence against a person, including any type of sexual assault referred to in clause 6 of Schedule 1 to the Victims Support and Rehabilitation Act 1996.

(2)  If an application is made to the Supreme Court within 14 days after a parole order is made, the order is suspended:

(a)  until the application is dealt with by the Court or the application is withdrawn, or

(b)  if the direction of the Supreme Court includes a requirement that the Parole Authority reconsider its decision in the light of the direction, until the Parole Authority revokes the order or confirms it with or without modifications.

(3)  Any such suspension automatically lapses at the end of the period of 28 days after the date on which a direction referred to in subsection (2) (b) is given if during that period the Parole Authority neither revokes the parole order nor confirms it with or without modifications.

152   Reasons to be provided for rejection of Review Council’s advice

(1)  If the Parole Authority rejects the advice of the Review Council concerning the release on parole of a serious offender, the Parole Authority must state in writing its reasons for rejecting that advice.

(2)  The Parole Authority must forward a copy of those reasons to the Review Council.

(3)  The Review Council may make submissions to the Parole Authority concerning the rejection of its advice within 21 days of that rejection.

(4)  The Parole Authority is not to make a final decision concerning the release of the offender during the period referred to in subsection (3).

153   Submissions by State

(1)  The State may at any time make submissions to the Parole Authority concerning the release on parole of a serious offender.

(2)  If the State makes any such submission before the Parole Authority makes a final decision concerning the release of the offender, the Parole Authority must not make such a decision without taking the submission into account.

(3)  If the State makes any such submission after the Parole Authority makes a final decision concerning the release of the offender, but before the offender is released, the Parole Authority must consider whether or not it should exercise its power under section 130 to revoke the relevant parole order.

(4)  The regulations may make provision for or with respect to submissions by the State under this section, including provisions relating to the application of this Subdivision in connection with any such submission.

(5)  The powers of the State under this section may be exercised by the Commissioner and by any other authority of the State.

154   Matters to be considered concerning certain serious offenders

(1)  This section applies to a serious offender whose sentence for life is the subject of a determination under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999.

(2)  The Parole Authority, in exercising its functions under this Part in relation to a serious offender to whom this section applies:

(a)  must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court, and

(b)  must give consideration to adopting or giving effect to any such recommendations, observations and comments and to the intention of the sentencing court when making them, and

(c)  to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must state its reasons for doing so,

      and must, in particular, have regard to the need to preserve the safety of the community.

154A   Serious offenders the subject of non-release recommendations

(1)  Section 143 does not require the Parole Authority to give preliminary consideration as to whether or not a serious offender the subject of a non-release recommendation should be released on parole unless an application for that purpose is made to the Parole Authority by or on behalf of the offender.

(2)  An application under this section must be lodged with the Secretary of the Parole Authority.

(3)  After considering the application, the Parole Authority may make an order directing the release of the offender on parole if, and only if, the Parole Authority:

(a)  is satisfied (on the basis of a report prepared by the Chief Executive Officer, Justice Health) that the offender:

(i)  is in imminent danger of dying, or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, and

(ii)  has demonstrated that he or she does not pose a risk to the community, and

(b)  is further satisfied that, because of those circumstances, the making of such an order is justified.

(4)  In this section serious offender the subject of a non-release recommendation means a serious offender:

(a)  who is serving a sentence for which a determination has been made under clause 4 of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, and

(b)  who is the subject of a non-release recommendation within the meaning of that Schedule, as in force from time to time.

Subdivision 4 Applications to Supreme Court

155   Application to Supreme Court by offender

(1)  If:

(a)  the Parole Authority decides that an offender should not be released on parole, and

(b)  the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information,

      the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.

(2)  The Supreme Court may give such directions with respect to the information as it thinks fit.

(3)  An application under this section is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.

(4)  This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority’s decision otherwise than on the grounds referred to in subsection (1).

156   Application to Supreme Court by State

(1)  If:

(a)  the Parole Authority decides that a serious offender should be released on parole, and

(b)  the Attorney General or the Director of Public Prosecutions alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information,

      the Attorney General or the Director of Public Prosecutions may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.

(2)  The Supreme Court may give such directions with respect to the information as it thinks fit.

(3)  This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority’s decision otherwise than on the grounds referred to in subsection (1).

157   Appearance in person of offender

(1)  At the hearing or determination of an application under this Subdivision, an offender is not entitled to appear in person, except by leave of the Supreme Court.

(2)  The power of the Supreme Court to grant an offender leave to appear in person at the hearing or determination of an application under this Subdivision may be exercised by any Judge of that Court, but no appeal lies to that Court against the refusal of a Judge of that Court to grant leave to appear.

Division 3 Parole orders for sentences of 3 years or less

158   Effect of parole orders made by court

(1)  A parole order made by a court under section 50 of the Crimes (Sentencing Procedure) Act 1999 in relation to a sentence is conditional on the offender being eligible for release on parole in accordance with section 126 of this Act at the end of the non-parole period of the sentence.

(2)  If the offender is not eligible for release at that time, the offender is entitled to be released on parole as soon as the offender becomes so eligible.

(3)  This section does not authorise the release on parole of an offender who is also serving a sentence of more than 3 years for which a non-parole period has been set unless the offender is entitled to be released under Division 2.

159   Making of parole orders by Parole Authority

(1)  The Parole Authority may make an order directing the release of an offender on parole if:

(a)  the offender is subject to a sentence of 3 years or less, being a sentence for which a non-parole period has been set, and

(b)  there is no parole order in force with respect to the offender under this Act, under the Crimes (Sentencing Procedure) Act 1999 or under a law of some other State or Territory.

(2)  Division 2 applies to the making of a parole order under this section.

Division 4 Parole orders in exceptional circumstances

160   Parole orders in exceptional circumstances

(1)  The Parole Authority may make an order directing the release of an offender on parole who (but for this section) is not otherwise eligible for release on parole if the offender is dying or if the Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional extenuating circumstances.

(2)  The Parole Authority is not required to consider an application for a parole order under this section, or to conduct a hearing, if it decides not to grant such an application.

(3)  Divisions 2 and 3 do not apply to a parole order under this section.

(4)  This section does not apply in respect of an offender serving a sentence for life.

160AA   Submissions by Commissioner

(1)  The Commissioner may at any time make submissions to the Parole Authority concerning the release on parole of an offender.

(2)  If the Commissioner makes any such submission before the Parole Authority makes a final decision concerning the release of the offender, the Parole Authority must not make such a decision without taking the submission into account.

(3)  If the Commissioner makes any such submission after the Parole Authority makes a final decision concerning the release of the offender, but before the offender is released, the Parole Authority must consider whether or not it should exercise its power under section 130 to revoke the relevant parole order.

(4)  The regulations may make provision for or with respect to submissions by the Commissioner under this section, including provisions relating to the application of this Division in connection with any such submission.

Division 5 Miscellaneous

160A   Relationship of parole orders to supervision orders under the Crimes (Serious Sex Offenders) Act 2006

(1)  An offender’s obligations under a parole order are suspended while the offender is subject to an extended supervision order under the Crimes (Serious Sex Offenders) Act 2006.

(2)  For the purposes of Division 3 of Part 7, the offender’s obligations under the extended supervision order are taken to be obligations under the parole order.

Note. Consequently, the offender’s parole order may be revoked under Division 3 of Part 7 if the offender fails to comply with his or her obligations under the supervision order.

161   Regulations

The regulations may make provision for or with respect to the following matters:

(a)  the management, control, administration and supervision of parole orders,

(b)  the standard conditions to be imposed on parole orders,

(c)  the service of notices on an offender,

(d)  the functions of probation and parole officers appointed or employed for the purposes of this Part.

Part 7 Revocation and reinstatement by Parole Authority of certain orders

Introductory note. This Part applies to the revocation and reinstatement of various kinds of orders. It deals with the following matters:

(a)  the revocation and reinstatement of periodic detention orders (Division 1),

(b)  the revocation and reinstatement of home detention orders (Division 2),

(c)  the revocation of parole orders (Division 3),

(d)  post-revocation procedures and rights of appeal (Division 4),

(e)  the giving of certain directions by the Supreme Court and rights of appearance in related proceedings (Division 5),

(f)  other miscellaneous matters (Division 6).

Division 1 Periodic detention orders

162   Conduct of inquiry into suspected breach of obligations

(1)  If the Parole Authority has reason to suspect that an offender has failed to comply with the offender’s obligations under a periodic detention order, the Parole Authority may, whether or not the order has expired, conduct an inquiry into the matter.

(2)  The offender to whom the periodic detention order relates may make submissions to the Parole Authority in relation to the matters under inquiry.

163   Revocation of periodic detention order

(1)  The Parole Authority may make an order (a revocation order) revoking a periodic detention order:

(a)  if it is satisfied that the offender has failed to comply with the offender’s obligations under the order, or

(b)  if the offender fails to appear before the Parole Authority when called on to do so under section 180, or

(c)  if the offender has applied for the order to be revoked,

      and may do so either on its own initiative or on the recommendation of the Commissioner.

(1A)  The Parole Authority may revoke an offender’s periodic detention order on the application of the Commissioner if it is satisfied that health reasons or compassionate grounds exist that justify its revocation.

(1B)  If a periodic detention order is revoked under subsection (1A), the Parole Authority may, on the application of the Commissioner, make such of the orders sought by the Commissioner in relation to the offender as it considers appropriate.

(1C)  The Parole Authority must revoke a periodic detention order that it has reinstated under section 168A (1A) if, at any time during the remainder of the term of the sentence to which the order relates (including any period during which the offender is released on parole under a parole order), the offender is sentenced to a term of imprisonment by way of full-time detention that is to be served consecutively (or partly consecutively) with the sentence to which the order relates.

(2)  The Parole Authority must revoke an offender’s periodic detention order on the application of the Commissioner if the Parole Authority is satisfied that:

(a)  the offender:

(i)  has failed to report for 3 or more detention periods, whether during the same sentence of imprisonment or during different sentences of imprisonment being served consecutively (or partly consecutively) and whether any of the failures to report occurred before or after a reinstatement of the offender’s periodic detention order under section 164A or 168A, and

(ii)  has not had a periodic detention order reinstated previously under section 164A or 168A following revocation for failure to report for 3 or more detention periods, whether under this subsection or any other law, or

(b)  the offender:

(i)  has failed to report for at least 1 detention period, and

(ii)  has had a periodic detention order reinstated previously under section 164A or section 168A following revocation for failure to report for 3 or more detention periods, whether under this subsection or any other law,

      and the Parole Authority is satisfied that the failures to report occurred otherwise than on leave of absence and are not the subject of an exemption under section 90.

(2A)  An application under subsection (2) must be made:

(a)  if the Commissioner is satisfied that:

(i)  an offender has failed to report for 3 or more consecutive detention periods, and

(ii)  the offender has failed to apply for, or been refused, leave of absence with respect to each of the detention periods referred to in subparagraph (i), and

(iii)  the offender’s periodic detention order has not previously been reinstated under section 164A or 168A following revocation for failure to report for 3 or more detention periods, whether under subsection (2) or any other law, or

(b)  if the Commissioner is satisfied that:

(i)  an offender has failed to report for at least 1 detention period, and

(ii)  the offender has failed to apply for, or been refused, leave of absence with respect to the detention period referred to in subparagraph (i), and

(iii)  the offender’s periodic detention order has previously been reinstated under section 164A or 168A following revocation for failure to report for 3 or more detention periods, whether under subsection (2) or any other law.

(2B)  For the purposes of subsection (2A) (a), one detention period is taken to be consecutive with another:

(a)  even if they each relate to different sentences of imprisonment being served by way of periodic detention, and

(b)  even if there is a period between them that is not a detention period because it includes the whole or any part of Christmas Day, Good Friday or Easter Sunday.

(2C)  For the purposes of this section:

(a)  an offender is taken to have failed to report for a detention period if, by the time that period ends, the offender has failed to report to the periodic detention centre or other place to which he or she is currently required to report, and

(b)  an offender is taken to have failed to apply for leave of absence for a detention period if, by the time the offender is due to report for that period, the offender has neither made an application for leave of absence nor, in the case of an inability to report, caused a telephone call to be made as referred to in section 87 (4) (a).

Note. Paragraph (a) makes it clear that an offender is not taken to have failed to report if the offender merely reports late (reporting late is dealt with in section 88, in relation to the granting of leave of absence, and section 89, in relation to extension of the term of the offender’s sentence). Paragraph (b) makes it clear that an offender’s failure to apply for leave of absence in relation to a failure to report for a detention period is ascertainable as soon as the detention period begins.

(3)  The Parole Authority may refuse to revoke an offender’s periodic detention order on the grounds referred to in subsection (2) if it is satisfied:

(a)  that the offender:

(i)  applied for, and ought to have been granted, leave of absence, or

(ii)  applied for, and ought to have been granted, an exemption under section 90,

      with respect to one or more detention periods, and

(b)  that the total number of detention periods for which the offender has failed to report would, had the leave or exemption been granted, be less than 3,

      and, in that event, leave of absence is taken to have been granted with respect to the detention periods referred to in paragraph (a).

(3A)  A decision as to whether or not an offender’s periodic detention order is to be revoked on the grounds referred to in subsection (2) is to be made at the meeting of the Parole Authority at which the matter is first raised unless the Parole Authority determines that deferral is necessary to allow it to obtain further information.

(3B)  A matter may not be deferred under subsection (3A) for more than 2 months from the date of the meeting at which the matter was first raised.

(4)  A revocation order may be made:

(a)  whether or not the offender has been called on to appear before the Parole Authority, and

(b)  whether or not the Parole Authority has held an inquiry.

(5)  A revocation order must state the reason for which it is made.

164   Effect of revocation order

(1)  A revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on such earlier date as the Parole Authority thinks fit.

(2)  The earliest date on which the revocation order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender’s obligations under the periodic detention order.

(3)  If an offender is not taken into custody until after the day on which the revocation order takes effect:

(a)  the term of the offender’s sentence, and

(b)  if the order takes effect during a non-parole period of the sentence, the non-parole period of the sentence,

      are, by this subsection, extended by the number of days the person was at large after the order took effect.

164A   Parole Authority may reinstate revoked periodic detention order

(1)  If an offender’s periodic detention order has been revoked under this Division or under section 179, the Parole Authority:

(a)  on the application of the offender, and

(b)  subject to Part 5 of the Crimes (Sentencing Procedure) Act 1999,

      may make an order reinstating the offender’s revoked periodic detention order in respect of the remaining balance of the offender’s sentence.

(1A)  Such an application:

(a)  may not be made until the offender has, since the periodic detention order was revoked, served at least 3 months of the offender’s sentence by way of full-time detention, and

(b)  must state what the offender has done, or is doing, to ensure that the offender will not fail to comply with the offender’s obligations under the periodic detention order in the event that it is reinstated.

(2)  Before making an order referred to in subsection (1), the Parole Authority must refer the offender to the Probation and Parole Service for assessment as to the suitability of the offender for periodic detention.

(3)  Part 5 of the Crimes (Sentencing Procedure) Act 1999 applies to and in respect of the Parole Authority and the offender in relation to the making of a periodic detention order under this section in the same way as it applies to and in respect of a court and an offender in relation to the making of a periodic detention order under that Act.

(4)  The Parole Authority may not make an order under subsection (1) if the offender is subject to a sentence of imprisonment by way of full-time detention that is yet to commence.

165   Parole Authority may order home detention

(1)  This section applies if the Parole Authority revokes a periodic detention order and, at the time that the revocation order takes effect, the remainder of the term of the sentence to which the periodic detention order relates (including any period during which the offender is eligible to be released on parole) is 18 months or less.

(2)  The Parole Authority may make an order directing that the remainder of the term of the sentence (excluding any period during which the offender is released on parole under a parole order) is to be served by way of home detention.

(3)  However, the Parole Authority may not make an order under subsection (2) if the offender is subject to a sentence of imprisonment by way of full-time detention that is yet to commence.

(4)  Subject to subsection (5), Part 6 of the Crimes (Sentencing Procedure) Act 1999 applies to and in respect of the Parole Authority and the offender in relation to the making of a home detention order under this section in the same way as it applies to and in respect of a court and an offender in relation to the making of a home detention order under that Act.

(5)  The reference of an offender for assessment in relation to the making of a home detention order under this section is to be made after, and not before, the periodic detention order referred to in subsection (1) is revoked.

165AA   Release of offender pending assessment for home detention

(1)  On referring an offender for assessment in relation to the making of a home detention order under section 165, the Parole Authority may make an order (a temporary release order) releasing the offender from custody or permitting the offender to remain at large, subject to such supervision as is prescribed by the regulations, pending the Parole Authority’s decision as to whether or not to make the home detention order.

(2)  An offender’s temporary release order:

(a)  may be revoked by the Parole Authority at any time, and

(b)  must be revoked by the Parole Authority when it makes its decision as to whether or not to make a home detention order under section 165 in respect of the offender.

(3)  The sentence to be served by the offender in respect of whom a temporary release order is made is, by this section, extended:

(a)  by the period for which the offender is absent from custody pursuant to the order, and

(b)  in the case of an offender for whom a warrant is issued under section 181 (1A), by the period between the issue of the warrant and the offender being taken into custody under the warrant.

(4)  In this section, a reference to the extension of an offender’s sentence is a reference to:

(a)  the extension of the term of the sentence, and

(b)  if the offender was released from custody during a non-parole period of the sentence, the extension of the non-parole period of the sentence.

165A   Conditions of home detention as to non-association and place restriction

(1)  The conditions to which a home detention order under section 165 is subject may include either or both of the following:

(a)  provisions prohibiting or restricting the offender from associating with a specified person,

(b)  provisions prohibiting or restricting the offender from frequenting or visiting a specified place or district.

(2)  A condition referred to in subsection (1) (a) or (b) is suspended while the offender is in lawful custody.

(3)  An offender does not contravene a prohibition or restriction as to his or her association with a specified person:

(a)  if the offender does so in compliance with an order of a court, or

(b)  if, having associated with the person unintentionally, the offender immediately terminates the association.

(4)  An offender does not contravene a requirement not to frequent or visit a specified place or district if the offender does so in compliance with an order of a court.

(5)  In this section, associate with means:

(a)  to be in company with, or

(b)  to communicate with by any means (including post, facsimile, telephone and email).

Division 2 Home detention orders

166   Conduct of inquiry into suspected breach of obligations

(1)  If the Parole Authority has reason to suspect that an offender has failed to comply with the offender’s obligations under a home detention order, the Parole Authority may, whether or not the order has expired, conduct an inquiry into the matter.

(2)  The offender to whom the home detention order relates may make submissions to the Parole Authority in relation to the matters under inquiry.

167   Revocation of home detention order

(1)  The Parole Authority may make an order (a revocation order) revoking a home detention order:

(a)  if it is satisfied that the offender has failed to comply with the offender’s obligations under the order, or

(b)  if the offender fails to appear before the Parole Authority when called on to do so under section 180, or

(c)  if the offender has applied for the order to be revoked, or

(d)  if a person with whom the offender resides during the period of the offender’s home detention has withdrawn in writing, in the form prescribed by the regulations, his or her consent to the continued operation of the home detention order,

      and may do so either on its own initiative or on the recommendation of the Commissioner or a probation and parole officer.

(2)  A revocation order may be made:

(a)  whether or not the offender has been called on to appear before the Parole Authority, and

(b)  whether or not the Parole Authority has held an inquiry.

(3)  A revocation order must state the reason for which it is made.

(4)  If it is satisfied that the offender has failed to comply with the offender’s obligations under a home detention order but is not of the opinion that the order should be revoked, the Parole Authority may instead impose further conditions on the order, or vary any of the existing conditions of the order, in accordance with section 103.

(5)  This section does not apply to an offender’s failure to comply with the offender’s obligations under a home detention order if that failure has been dealt with in accordance with the regulations referred to in section 106.

(6)  The Parole Authority must revoke a home detention order:

(a)  that it has made under section 165, or

(b)  that it has reinstated under section 168A (1),

      if, at any time during the remainder of the term of the sentence to which the order relates (including any period during which the offender is released on parole under a parole order), the offender is sentenced to a term of imprisonment by way of full-time detention that is to be served consecutively (or partly consecutively) with the sentence to which the order relates.

168   Effect of revocation order

(1)  A revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on such earlier date as the Parole Authority thinks fit.

(2)  The earliest date on which a revocation order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender’s obligations under the home detention order.

(3)  If an offender is not taken into custody until after the day on which the revocation order takes effect:

(a)  the term of the offender’s sentence, and

(b)  if the order takes effect during a non-parole period of the sentence, the non-parole period of the sentence,

      are, by this subsection, extended by the number of days the person was at large after the order took effect.

168A   Parole Authority may reinstate revoked home detention order or prior revoked periodic detention order

(1)  If:

(a)  an offender’s home detention order has been revoked under this Division or section 179, and

(b)  the offender has, since that revocation, served at least 3 months of the offender’s sentence by way of full-time detention,

      the Parole Authority may, on the application of the offender and subject to Part 6 of the Crimes (Sentencing Procedure) Act 1999, make an order reinstating the offender’s revoked home detention order in respect of the remaining balance of the offender’s sentence.

(1A)  In the case of an offender whose home detention order was made under section 165 following revocation of a periodic detention order under Division 1, the Parole Authority may instead, on the application of the offender and subject to Part 5 of the Crimes (Sentencing Procedure) Act 1999, make an order reinstating the revoked periodic detention order in respect of the remaining balance of the offender’s sentence.

(2)  Before making an order referred to in subsection (1) or (1A), the Parole Authority must refer the offender to the Probation and Parole Service for assessment as to the suitability of the offender for home detention or periodic detention, as the case requires.

(3)  Parts 5 and 6 of the Crimes (Sentencing Procedure) Act 1999 apply to and in respect of the Parole Authority and the offender in relation to the making of a periodic detention order or home detention order under this section in the same way as they apply to and in respect of a court and an offender in relation to the making of a periodic detention order or home detention order under that Act.

(4)  The Parole Authority may not make an order under subsection (1) or (1A) if the offender is subject to a sentence of imprisonment by way of full-time detention that is yet to commence.

Division 3 Parole orders

169   Conduct of inquiry into suspected breach of obligations or medical recovery

(1)  If the Parole Authority has reason to suspect that an offender has failed to comply with the offender’s obligations under a parole order, the Parole Authority may, whether or not the order has expired, conduct an inquiry into the matter.

(1A)  In the case of an offender who has been granted parole on the grounds that he or she is in imminent danger of dying or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, as referred to in section 154A (3), the Parole Authority may also conduct an inquiry if it suspects that those grounds no longer exist.

(2)  The offender to whom the parole order relates may make submissions to the Parole Authority in relation to the matters under inquiry.

(3)  The Parole Authority is not required to inquire into a possible contravention of a parole order made by a court unless the offender to whom the order relates is required by the conditions of the order to be supervised.

170   Revocation of parole order

(1)  The Parole Authority may make an order (a revocation order) revoking a parole order:

(a)  if it is satisfied that the offender has failed to comply with the offender’s obligations under the order, or

(a1)  in the case of an offender who has been granted parole on the grounds that he or she is in imminent danger of dying or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, as referred to in section 154A (3), if it is satisfied that those grounds no longer exist, or

(b)  if the offender fails to appear before the Parole Authority when called on to do so under section 180, or

(c)  if the offender has applied for the order to be revoked,

      and may do so either on its own initiative or on the recommendation of the Commissioner or a probation and parole officer.

(2)  A revocation order may be made:

(a)  whether or not the offender has been called on to appear before the Parole Authority, and

(b)  whether or not the Parole Authority has held an inquiry.

(3)  A revocation order must state the reason for which it is made.

(4)  If it is satisfied that the offender has failed to comply with the offender’s obligations under a parole order but is not of the opinion that the order should be revoked, the Parole Authority may instead impose further conditions on the order, or vary any of the existing conditions of the order, in accordance with section 128.

171   Effect of revocation order

(1)  A revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on such earlier date as the Parole Authority thinks fit.

(2)  The earliest date on which a revocation order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender’s obligations under the parole order.

(3)  If an offender is not taken into custody until after the day on which the revocation order takes effect, the term of the offender’s sentence is, by this subsection, extended by the number of days the person was at large after the order took effect.

172   Request by State to revoke parole order

The Attorney General or the Director of Public Prosecutions may request the Parole Authority to exercise its powers to revoke a parole order in relation to a serious offender on the ground that the order has been made on the basis of false, misleading or irrelevant information.

172A   Interim suspension of parole order

(1)  On the application of the Commissioner, a judicial member of the Parole Authority:

(a)  may make an order suspending an offender’s parole order, and

(b)  if the offender is not then in custody, may issue a warrant for the offender’s arrest.

(2)  An application under subsection (1) may be made in person or by telephone, electronic mail or facsimile transmission.

(3)  Action under subsection (1) may only be taken in relation to an offender’s parole order if the judicial member is satisfied:

(a)  that the Commissioner has reasonable grounds for believing:

(i)  that the offender has failed to comply with the offender’s obligations under the parole order, or

(ii)  that there is a serious and immediate risk that the offender will leave New South Wales in contravention of the conditions of the parole order, or

(iii)  that there is a serious and immediate risk that the offender will harm another person, or

(iv)  that there is a serious and immediate risk that the offender will commit an offence, and

(b)  that, because of the urgency of the circumstances, there is insufficient time for a meeting of the Parole Authority to be convened to deal with the matter.

(4)  If an application under this section is made otherwise than in person, the judicial member may furnish the applicant with a suspension order or arrest warrant:

(a)  by sending a copy of the order or warrant to the applicant by electronic mail or facsimile transmission, or

(b)  by dictating the terms of the order or warrant to the applicant by telephone.

(5)  A document:

(a)  that contains:

(i)  a copy of a suspension order or arrest warrant that the judicial member has sent by electronic mail or facsimile transmission, or

(ii)  the terms of a suspension order or arrest warrant that the judicial member has dictated by telephone, and

(b)  that bears a notation:

(i)  as to the identity of the judicial member, and

(ii)  as to the time at which the copy was sent or the terms dictated,

      has the same effect as the original suspension order or arrest warrant.

(6)  A suspension order may be revoked by any judicial member of the Parole Authority or by the Commissioner.

(7)  Unless sooner revoked, a suspension order ceases to have effect at the end of 28 days after it is made or, if the offender is not in custody when it is made, at the end of 28 days after the offender is taken into custody.

(8)  While a suspension order is in force, the parole order to which it relates does not have effect.

(9)  An arrest warrant is sufficient authority for a police officer to arrest the offender named in the warrant, to convey the offender to the correctional centre specified in the warrant and to deliver the offender into the custody of the general manager of that correctional centre.

(10)  In this section:

arrest warrant means a warrant referred to in subsection (1) (b).

suspension order means an order referred to in subsection (1) (a).

Division 4 Post-revocation procedures and rights of appeal

173   Notice of revocation

(1)  The Parole Authority must cause a notice (a revocation notice) to be served on an offender if the Parole Authority revokes the offender’s periodic detention order, home detention order or parole order.

(1A)  A revocation notice must be served:

(a)  as soon as practicable after the revocation of the order concerned, unless paragraph (b) applies, or

(b)  if the Parole Authority issues a warrant under section 181 in relation to the offender, as soon as practicable after the warrant has been executed and, in any case, within 21 days after the offender is returned to custody.

(2)  A revocation notice:

(a)  must be in the form prescribed by the regulations, and

(b)  must set a date (occurring not earlier than 14, nor later than 28, days after the date on which it is served) on which the Parole Authority is to meet:

(i)  for the purpose of reconsidering the revocation of the periodic detention order, home detention order or parole order, and

(ii)  for the purpose of reconsidering the date specified by the notice as the date on which the revocation order takes effect, if that date is an earlier date than the date on which the revocation order was made, and

(c)  must require the offender to notify the Secretary of the Parole Authority, not later than 7 days before the date so set, if the offender intends to make submissions to the Parole Authority in relation to the reconsideration of those matters, and

(d)  must be accompanied by:

(i)  a copy of the revocation order by which the periodic detention order, home detention order or parole order was revoked, and

(ii)  copies of the reports and other documents used by the Parole Authority in making the decision to revoke the periodic detention order, home detention order or parole order and, if appropriate, the decision to specify the earlier day.

174   Review of revocation

(1)  If an offender duly notifies the Secretary of the Parole Authority that the offender intends to make submissions to the Parole Authority, the Chairperson of the Parole Authority must convene a meeting of the Parole Authority, on the date set by the revocation notice, to conduct a hearing for either or both of the following purposes, as the case requires:

(a)  for the purpose of reconsidering the revocation of the periodic detention order, home detention order or parole order, or

(b)  for the purpose of reconsidering the date specified by the notice as the date on which the revocation order takes effect, if that date is an earlier date than the date on which the revocation order was made.

(2)  At the hearing, or at a hearing conducted at a subsequent meeting, the offender may make submissions to the Parole Authority with respect to the revocation of the periodic detention order, home detention order or parole order.

175   Decision after review

(1)  After reviewing all the reports, documents and other information placed before it, the Parole Authority must decide whether or not:

(a)  to rescind the revocation of the periodic detention order, home detention order or parole order concerned, or

(b)  to rescind or vary the specification of the earlier day.

(1A)  Despite subsection (1) (a) and (b), the Parole Authority may not rescind the revocation of:

(a)  a periodic detention order of an offender who has failed to apply for, or been refused, leave of absence with respect to 3 or more detention periods, or

(b)  a periodic detention order that it has revoked under section 163 (1C), or

(c)  a home detention order that it has revoked under section 167 (6),

      except in such circumstances as may be prescribed by the regulations as constituting manifest injustice.

(2)  If the Parole Authority rescinds the revocation of a periodic detention order because it is satisfied:

(a)  that the offender:

(i)  applied for, and ought to have been granted, leave of absence, or

(ii)  applied for, and ought to have been granted, an exemption under section 90,

      with respect to one or more detention periods, and

(b)  that the total number of detention periods for which the offender has failed to report would, had the leave or exemption been granted, be less than 3,

      leave of absence is taken to have been granted with respect to the detention periods referred to in paragraph (a).

(3)  A decision under this section has effect according to its terms even if the periodic detention order, home detention order or parole order concerned has expired.

(4)  If the Parole Authority rescinds the revocation of the periodic detention order, home detention order or parole order concerned, any other periodic detention order, home detention order or parole order consequentially revoked under section 179 is revived and has effect as if it had not been revoked.

(5)  If the Parole Authority rescinds the revocation of the periodic detention order, home detention order or parole order concerned, the Parole Authority must cause the reasons for its decision to be recorded in its minutes.

175A   Review not available in certain circumstances

If an offender’s periodic detention order, home detention order or parole order is revoked within 30 days before the date on which the offender’s sentence expires (ignoring any extension of the sentence under section 168 (3)):

(a)  the revocation notice referred to in section 173 is not required to comply with the requirements of section 173 (2) (b) or (c), and

(b)  the offender is not entitled to seek reconsideration of the revocation of the order under section 174.

Division 5 Applications to Supreme Court

176   Application to Supreme Court by offender

(1)  If:

(a)  the Parole Authority revokes a periodic detention order, home detention order or parole order, and

(b)  the offender to whom the periodic detention order, home detention order or parole order relates alleges that the order has been revoked on the basis of false, misleading or irrelevant information,

      the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.

(2)  The Supreme Court may give such directions with respect to the information as it thinks fit.

(3)  An application under this section is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.

(4)  This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority’s decision otherwise than on the grounds referred to in subsection (1).

177   Application to Supreme Court by State

(1)  If:

(a)  the Parole Authority refuses or fails within 28 days after a request by the Attorney General or the Director of Public Prosecutions under section 172 to revoke a parole order in relation to a serious offender, and

(b)  the Attorney General or the Director of Public Prosecutions alleges that the parole order has been made on the basis of false, misleading or irrelevant information,

      the Attorney General or the Director of Public Prosecutions may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant and the Supreme Court may give such directions with respect to the information as it thinks fit.

(2)  This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority’s decision otherwise than on the grounds referred to in subsection (1).

178   Appearance in person of offender

(1)  At the hearing or determination of an application under this Division, an offender is not entitled to appear in person, except by leave of the Supreme Court.

(2)  The power of the Supreme Court to grant an offender leave to appear in person at the hearing or determination of an application under this Division may be exercised by any Judge of that Court, but no appeal lies to that Court against the refusal of a Judge of that Court to grant leave to appear.

Division 6 Miscellaneous

179   Consequential revocation of other orders

(1)  If:

(a)  an offender’s periodic detention order, home detention order or parole order is revoked under this Part, or

(b)  an offender is sentenced to imprisonment for more than one month,

      the Parole Authority may revoke any or all of the other periodic detention orders, home detention orders or parole orders that are in force, or are yet to come into force, in relation to the offender.

(2)  Divisions 1–4 do not apply to the revocation of a periodic detention order, home detention order or parole order under this section, except as provided by subsection (4).

(3)  No appeal lies against the revocation of a periodic detention order, home detention order or parole order under this section.

(4)  Section 165 applies to a periodic detention order revoked under this section in the same way as it applies to a periodic detention order revoked under Division 1 of this Part.

179A   Revocation of first of consecutive home detention orders—Parole Authority to seek new assessment

(1)  If:

(a)  an offender’s home detention order is revoked under this Part, and

(b)  the offender is the subject of one or more other home detention orders yet to come into force (being an order or orders that the Parole Authority has declined to revoke),

      the Parole Authority must refer the offender to the Probation and Parole Service for assessment as to the suitability of the offender for home detention in accordance with Part 6 of the Crimes (Sentencing Procedure) Act 1999 before the other order (or, if more than one, the first order that would commence) comes into force.

(2)  If, following the assessment, the Parole Authority determines that the offender is not suitable for home detention, the Parole Authority must revoke the offender’s next home detention order.

(3)  Divisions 1, 2 and 3 do not apply to the revocation of a home detention order under this section.

(4)  No appeal lies against a revocation of a home detention order under this section.

180   Offenders to attend Parole Authority when called on

(1)  For the purposes of an inquiry under this Part, the Parole Authority:

(a)  may call on an offender to appear before it and, if the offender does not appear, may issue a warrant for the offender’s arrest, or

(b)  if of the opinion that the offender will not appear if called on to do so, may, without calling on the offender to appear before it, issue a warrant for the offender’s arrest.

(2)  A warrant under this section:

(a)  is to be signed by a judicial member of the Parole Authority (as referred to in section 183 (2) (a)), and

(b)  is sufficient authority for a police officer to arrest the offender named in the warrant, to convey the offender to the place specified in the warrant and to deliver the offender into the custody of the Parole Authority.

(3)  The regulations may make provision for or with respect to the form of any warrants issued for the purposes of this section.

181   Warrants committing offenders to correctional centres

(1)  If the Parole Authority:

(a)  revokes a periodic detention order, home detention order or parole order, or

(b)  decides not to make a home detention order under section 165 with respect to an offender the subject of a temporary release order under section 165AA,

      it may issue a warrant committing the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention.

(1A)  If the Parole Authority revokes a temporary release order under section 165AA, it may issue a warrant committing the offender to a correctional centre pending the Parole Authority’s decision as to whether or not to make a home detention order under section 165.

(1B)  The Parole Authority may, by order, recall or suspend any warrant that it has issued under this section.

(2)  A warrant or order under this section is to be signed by a judicial member of the Parole Authority as referred to in section 183 (2) (a).

(3)  Subject to any order under subsection (1B), a warrant under this section is sufficient authority:

(a)  for any police officer to arrest, or to have custody of, the offender named in the warrant, to convey the offender to the correctional centre specified in the warrant and to deliver the offender into the custody of the general manager of that correctional centre, and

(b)  for the general manager of the correctional centre specified in the warrant to have custody of the offender named in the warrant for the remainder of the sentence to which the warrant relates, or pending the Parole Authority’s decision as to whether or not to make a home detention order under section 165, as the case requires.

(4)  The regulations may make provision for or with respect to the form of any warrants or orders issued for the purposes of this section.

182   Functions may be exercised after order has expired

The Parole Authority may exercise any function under this Part in relation to a periodic detention order, home detention order or parole order, even if the order has expired.

Part 8 The Parole Authority

Introductory note. This Part establishes the State Parole Authority. It deals with the following matters:

(a)  the constitution and functions of the Parole Authority (Division 1),

(b)  the powers of the Parole Authority in relation to inquiries conducted by it (Division 2),

(c)  other miscellaneous matters (Division 3).

Division 1 Constitution and functions

183   Constitution of Parole Authority

(1)  There is constituted by this Act a State Parole Authority.

(2)  The Parole Authority is to consist of the following members:

(a)  at least 4 (referred to as judicial members) are to be judicially qualified persons appointed by the Governor,

(b)  at least one is to be a police officer appointed by the Commissioner of Police,

(c)  at least one is to be an officer of the Probation and Parole Service appointed by the Commissioner of Corrective Services,

(d)  (Repealed)

(e)  at least 10 (referred to as community members) are to be persons, appointed by the Governor, who reflect as closely as possible the composition of the community at large.

(2A)  Of the members referred to in subsection (2) (e), at least one must be a person who, in the opinion of the Minister, has an appreciation or understanding of the interests of victims of crime.

(3)  For the purposes of this Act:

(a)  the members referred to in subsection (2) (a) and (e) are referred to as appointed members, and

(b)  the members referred to in subsection (2) (b) and (c) are referred to as official members, and

(c)  the members referred to in subsection (2) (b)–(e) are referred to as non-judicial members.

(4)  Schedule 1 has effect with respect to the constitution and procedure of the Parole Authority.

184   Divisions of Parole Authority

(1)  The Chairperson may from time to time constitute Divisions of the Parole Authority and dissolve any Division so constituted.

(2)  A Division is to consist of:

(a)  one judicial member, and

(b)  at least one community member, and

(c)  one or more official members.

(3)  The Chairperson may delegate to a Division any of the functions of the Parole Authority.

(4)  For the purpose of its exercise of any function so delegated, a Division is taken to be the Parole Authority.

185   Functions of Parole Authority

(1)  The Parole Authority has the following functions:

(a)  to determine matters with respect to the granting of parole and the conditions on which parole is granted,

(b)  to determine matters with respect to the revocation of periodic detention orders, home detention orders and parole orders,

(c)  such other functions as are conferred or imposed on it by or under this or any other Act or law.

(2)  In exercising its functions, the Parole Authority:

(a)  must have regard to the fact that the Commissioner has the care, control and management of all offenders who are held in custody in accordance with Part 2, 3 or 4, and

(b)  must consider any submissions made to it by the Commissioner or by any other person or body entitled to make such submissions.

(3)  In particular, in exercising any function in respect of which the Review Council has furnished advice, the Parole Authority must have regard not only to that advice but also to any submissions made by the Commissioner with respect to that advice.

(4)  The regulations may make provision for or with respect to submissions by the Commissioner under this section.

185A   Establishment of guidelines

In consultation with the Minister, the Parole Authority may from time to time establish guidelines (not inconsistent with this Act or the regulations) in relation to the exercise of its functions.

Division 2 Inquiries

186   Power to require attendance of witnesses and production of documents

(1)  A judicial member may, by instrument in writing, require any person on whom the instrument is served personally or by post:

(a)  to appear before the Parole Authority for the purpose of giving evidence, or

(b)  to produce to the Parole Authority any document (including a document in the custody or under the control of the person and in the possession of or the property of the Crown) that is relevant to any proceedings of the Parole Authority,

      at a time, date and place specified in the instrument.

(2)  A judicial member may require a person who appears before the Parole Authority to be sworn for the purpose of giving evidence on oath and may administer an oath accordingly.

(3)  If a document is produced to the Parole Authority, the Parole Authority may take possession of the document for such period as it considers necessary for the purposes of the proceedings before it.

(4)  This section does not require a person to produce to the Parole Authority any document the production of which the Minister certifies in writing:

(a)  may endanger an offender or any other person, or

(b)  may otherwise be contrary to the public interest.

187   Examination by judicial member

(1)  A judicial member may require a person (including an officer or employee of the Crown) who appears before the Parole Authority to answer a question that is reasonably related to the proceedings before the Parole Authority.

(2)  A natural person is not excused from answering a question put to the person by a judicial member on the ground that the answer tends to incriminate the person.

(3)  If a person claims, before answering such a question, that the answer tends to incriminate the person, neither the question nor the answer is admissible in evidence against the person in criminal proceedings, other than proceedings for an offence under section 188 (c) or on a charge of perjury in respect of the answer.

188   Offences

A person must not:

(a)  refuse, fail or neglect to comply with a requirement under section 186 or 187, except to the extent to which the person is lawfully excused from complying with the requirement, or

(b)  produce any document, knowing it to be false or misleading in a material particular, in purported compliance with a requirement under section 186, or

(c)  make an unsworn statement, knowing it to be false or misleading in a material particular, when appearing before the Parole Authority.

Maximum penalty: 5 penalty units.

189   Misconduct before Parole Authority

(1)  A person must not, during a hearing at a meeting of the Parole Authority:

(a)  wilfully insult any member of the Parole Authority, or

(b)  wilfully misbehave during the hearing, or

(c)  wilfully and without lawful excuse interrupt the hearing, or

(d)  wilfully and without lawful excuse disobey a direction of the judicial member presiding at the hearing.

Maximum penalty: 20 penalty units or imprisonment for 28 days.

(2)  The judicial member presiding at the hearing may direct a person who does any such thing to leave the place where the hearing is being conducted.

190   Rights of parties making submissions

(1)  At any meeting of the Parole Authority at which any person (including the State) is entitled under this Act to make submissions to the Parole Authority, the person:

(a)  may be represented by an Australian legal practitioner or, with the consent of the Parole Authority, by any other person, and

(b)  may call and examine any witness who attends, including any witness called by the Parole Authority, and

(c)  may produce documents and exhibits to the Parole Authority, and

(d)  may give evidence on oath, and

(e)  may otherwise adduce, orally or in writing, to the Parole Authority such matters, and address the Parole Authority on such matters, as are relevant to the proceedings before the Parole Authority.

(2)  However, victims or their representatives are not entitled:

(a)  to call or examine witnesses at a hearing under Subdivision 3 of Division 2 of Part 6, or

(b)  without the approval of the Parole Authority:

(i)  to give evidence on oath, or

(ii)  to otherwise adduce any matter orally to the Parole Authority or to address the Parole Authority on any matter.

(3)  Subsection (2) (b) (ii) does not require a victim of a serious offender or his or her representative to obtain the approval of the Parole Authority to make an oral submission to the Parole Authority under section 147 (2).

191   Witnesses’ expenses

A person who is required to appear or give evidence before the Parole Authority (other than an offender in respect of whom the proceedings are being held) is entitled to be paid such allowances and expenses (if any) as the Minister may determine in respect of the person.

Division 3 Miscellaneous

192   Report to Minister

(1)  As soon as practicable after 31 December in each year, the Parole Authority must furnish to the Minister for presentation to Parliament a report giving information as to the Parole Authority’s activities during that year and setting out statistical information as to:

(a)  the number of cases considered by the Parole Authority, and

(b)  the number of persons released on parole under this Act, and

(c)  the number of parole orders amended, varied or revoked by the Parole Authority, and

(d)  the number of existing licences (within the meaning of the repealed Sentencing Act 1989) amended, varied or revoked by the Parole Authority, and

(e)  such other matters as the Parole Authority considers appropriate.

(2)  The Parole Authority must also report to the Minister from time to time on any aspect of its activities concerning which the Minister requests a report.

192A   Minister to table report

(1)  The Minister must, as soon as practicable after receiving the report referred to in section 192 (1), lay a copy of the report or cause it to be laid before both Houses of Parliament.

(2)  If a House of Parliament is not sitting when the Minister seeks to comply with subsection (1), the Minister must present copies of the report to the Clerk of the House of Parliament.

(3)  A report presented to the Clerk of a House of Parliament:

(a)  is taken on presentation, and for all purposes, to have been laid before the House of Parliament, and

(b)  may be printed by authority of the Clerk of the House, and

(c)  for all purposes is taken to be a document published by order or under the authority of the House, and

(d)  on the first sitting day of the House after receipt of the report by the Clerk, must be recorded:

(i)  in the case of the Legislative Council—in the Minutes of the Proceedings of the Legislative Council, or

(ii)  in the case of the Legislative Assembly—in the Votes and Proceedings of the Legislative Assembly.

193   Information concerning offenders and correctional centres

(1)  Any person who is a member of the Parole Authority, or is authorised in writing by the Parole Authority in that behalf, is entitled to free and unfettered access at all reasonable times to any offender confined in a correctional centre:

(a)  whose release on parole is being considered by the Parole Authority, or

(b)  whose case has been referred to the Parole Authority by the Minister, or

(c)  in respect of whom a non-parole period is applicable, or

(d)  who is being held under section 39 of the Mental Health (Forensic Provisions) Act 1990, or

(e)  who is a licensee (within the meaning of the repealed Sentencing Act 1989) or a person whose existing licence (within the meaning of the repealed Sentencing Act 1989) has been revoked,

      and it is the duty of the general manager of the correctional centre to provide any such person with facilities for communicating with or observing any such offender.

(2)  The Commissioner of Corrective Services or the Commissioner of Police must, if so requested by the Parole Authority, supply to the Parole Authority reports on the conduct and character of:

(a)  any offender referred to in subsection (1), and

(b)  any offender who is for the time being subject to a parole order.

(3)  If any offender referred to in subsection (2) was formerly a person detained in a detention centre, within the meaning of the Children (Detention Centres) Act 1987, the Director-General of the Department of Juvenile Justice must, if requested by the Parole Authority, supply to the Parole Authority a report on the conduct and character of the offender while as a person detained in a detention centre.

(4)  The Director-General of the Department of Health must, if requested by the Parole Authority:

(a)  arrange for psychological, medical or psychiatric examinations to be carried out on any offender referred to in subsection (2), and

(b)  supply to the Parole Authority all reports on the result of any such examination.

(5)  In any report on an offender supplied to the Parole Authority under this section, there must be included such information available to the person supplying the report as may be of assistance to the Parole Authority in considering the case of the offender to whom the report relates.

193A   Access to documents held by Parole Authority

(1)  The Minister is entitled to be given access to all documents held by or on behalf of the Parole Authority.

(2)  Subject to section 194, a victim of a serious offender, or a victim’s authorised agent, is entitled to be given access to all documents held by or on behalf of the Parole Authority in relation to the offender, but only to the extent to which those documents indicate the measures that the offender has taken, or is taking, to address his or her offending behaviour.

(3)  In this section, authorised agent means a person who is authorised in writing by a victim and by the Commissioner to act as agent for that victim.

(4)  A victim may revoke an authorisation under this section at any time by notice in writing to the Commissioner.

193B   Recommendations to Commissioner

(1)  The Parole Authority may at any time make recommendations to the Commissioner concerning the preparation of offenders for release on parole, either generally or in relation to any particular offender or class of offenders.

(2)  In exercising his or her functions, the Commissioner must have regard to, but is not bound by, any such recommendation.

193C   Parole Authority decisions

(1)  The Parole Authority must cause a record of its reasons for the following decisions under Parts 6 and 7 to be kept in the minutes of its meetings:

(a)  all decisions that result in the granting or refusing of parole,

(b)  all decisions that result in the revocation of a periodic detention order, home detention order or parole order,

(c)  all decisions that result in the refusal to revoke a periodic detention order or home detention order following a recommendation referred to in section 163 (1) or 167 (1),

(d)  all decisions that result in the refusal to revoke a parole order:

(i)  following a submission made under section 141A (3) or 153 (3), or

(ii)  following a recommendation referred to in section 170 (1).

(2)  In recording its reasons for a decision under Division 2 of Part 6 that an offender should or should not be released on parole, the Parole Authority must address:

(a)  the matters referred to in section 135, and

(b)  if the decision relates to a serious offender to whom section 154 applies, the matters referred to in that section, and

(c)  such other matters as the Parole Authority is, under this Act or the regulations, required to take into account in making the decision.

(3)  Copies of any records made under this section are to be supplied to the Minister, the Commissioner and the Probation and Parole Service, as they may request.

(4)  Subject to this Act, a decision by the Parole Authority under Part 6 or 7 is final.

194   Security of certain information

(1)  Nothing in this Act or the regulations requires a person to be provided with a copy of a report or another document (or any part of the report or document) if its provision to the person may, in the opinion of a judicial member:

(a)  adversely affect the security, discipline or good order of a correctional centre, or

(b)  endanger the person or any other person, or

(c)  jeopardise the conduct of any lawful investigation, or

(d)  prejudice the public interest, or

(e)  adversely affect the supervision of any offender who has been released on parole, or

(f)  disclose the contents of any offender’s medical, psychiatric or psychological report.

(2)  Subsection (1) does not permit the Minister to be denied access to any document held by the Parole Authority.

Part 9 The Serious Offenders Review Council

Introductory note. This Part establishes the Serious Offenders Review Council. It deals with the following matters:

(a)  the constitution and functions of the Review Council (Division 1),

(b)  the powers of the Review Council in relation to inquiries conducted by it (Division 2),

(c)  the establishment of the Serious Offenders Management Committee and its subcommittees (Division 3),

(d)  other miscellaneous matters (Division 4).

Division 1 Constitution and functions

195   Constitution of Review Council

(1)  There is constituted by this Act the Serious Offenders Review Council.

(2)  The Review Council is to consist of at least 8, but not more than 14 members, of whom:

(a)  3 are to be judicially qualified persons (referred to as judicial members), appointed by the Governor, and

(b)  2 members are to be officers of the Department (referred to as official members), appointed by the Commissioner, and

(c)  the remainder (referred to as community members) are to be persons who reflect as closely as possible the composition of the community at large, appointed by the Governor.

(3)  For the purposes of this Act:

(a)  the members referred to in subsection (2) (a) and (c) are referred to as appointed members, and

(b)  the members referred to in subsection (2) (b) and (c) are referred to as non-judicial members.

(4)  Schedule 2 has effect with respect to the constitution and procedure of the Review Council.

196   Divisions of Review Council

(1)  The Chairperson may from time to time constitute Divisions of the Review Council and dissolve any Division so constituted.

(2)  A Division is to consist of a judicial member, a community member and an official member.

(3)  The Chairperson may delegate to a Division any of the functions of the Review Council.

(4)  For the purpose of its exercise of any function so delegated, a Division is taken to be the Review Council.

197   Functions of Review Council

(1)  The Review Council has such functions as are conferred on it by or under this or any other Act or law.

(2)  In particular, the Review Council has the following functions:

(a)  to provide advice and make recommendations to the Commissioner with respect to the following:

(i)  the security classification of serious offenders,

(ii)  the placement of serious offenders,

(iii)  developmental programs provided for serious offenders,

(b)  to provide reports and advice to the Parole Authority concerning the release on parole of serious offenders,

(c)  to prepare and submit reports to the Supreme Court with respect to applications under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999,

(d)  to review segregated and protective custody directions under Division 2 of Part 2,

(d1)  to make recommendations to the Minister with respect to the transfer of juvenile inmates from juvenile correctional centres to adult correctional centres under Division 3A of Part 2,

(e)  to provide reports and advice to the Minister and to such other persons or bodies as may be prescribed by the regulations,

(f)  to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders.

(3)  (Repealed)

197A   Review Council constituted by Chairperson alone in certain circumstances

(1)  The regulations may require any of the Review Council’s functions under Division 2 (Segregated and protective custody) of Part 2, in relation to a specified class of inmate, to be exercised by the Chairperson.

(2)  Accordingly, in such a case, the Review Council is taken to be constituted by the Chairperson alone.

(3)  Any functions of the Review Council under Division 2 of Part 2 that are not required by the regulations to be exercised by the Chairperson may be delegated by the Review Council to the Chairperson or a judicial member nominated by the Chairperson.

198   Matters to be considered in relation to certain advisory functions

(1)  When exercising its functions under section 197 (2) (a) in relation to a serious offender, the Review Council must consider the public interest and any other relevant matters.

(2)  In the case of its function under section 197 (2) (a) (i), the Review Council must also consider, in accordance with the regulations:

(a)  any submissions made by the State, and

(b)  any submissions made by victims of the serious offender,

      before advising or recommending that a serious offender should be given a less stringent security classification if it appears to the Review Council that the new classification would allow the offender to become eligible for unescorted leave of absence under a local leave permit or interstate leave permit.

(2A)  When exercising its functions under section 197 (2) (b) in relation to a serious offender, the Review Council must consider the following matters:

(a)  the public interest,

(b)  the offender’s classification history,

(c)  the offender’s conduct while in custody, both in relation to sentences currently being served and in relation to earlier sentences,

(d)  the offender’s willingness to participate in rehabilitation programs, and the success or otherwise of his or her participation in such programs,

(e)  any relevant reports (including any medical, psychiatric or psychological reports) that are available to the Review Council in relation to the offender,

(f)  any other matter that the Review Council considers to be relevant.

(3)  Without limiting the generality of the meaning of public interest in subsections (1) and (2A), the Review Council is to take into account the following matters when considering the public interest:

(a)  the protection of the public, which is to be paramount,

(b)  the nature and circumstances of the offence,

(c)  the reasons and recommendations of the sentencing court,

(d)  the criminal history and family background of the offender,

(e)  the time the offender has served in custody and the time the offender has yet to serve in custody,

(f)  the offender’s conduct while in custody, including the offender’s conduct during previous imprisonment, if applicable,

(g)  the attitude of the offender,

(h)  the position of and consequences to any victim of the offender, including the victim’s family,

(i)  the need to maintain public confidence in the administration of criminal justice,

(j)  the need to reassure the community that serious offenders are in secure custody as long as it is appropriate,

(k)  the rehabilitation of the offender and the re-entry of the offender into the community as a law-abiding citizen,

(l)  the availability to the offender of family, departmental and other support,

(m)  such other factors as are prescribed by the regulations.

199   Matters to be considered in relation to offenders serving existing life sentences

(1)  This section applies to an offender serving an existing life sentence (as referred to in Schedule 1 to the Crimes (Sentencing Procedure) Act 1999) or a sentence for which a determination has been made under that Schedule.

(2)  The Review Council, in exercising its functions under section 197 (2) (b) and (c), and under any other prescribed provisions of this Act or the regulations, in relation to an offender to whom this section applies:

(a)  must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court, and

(b)  must give consideration to adopting or giving effect to any such recommendations, observations and comments and to the intention of the sentencing court when making them, and

(c)  to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must state its reasons for doing so,

      and must, in particular, have regard to the need to preserve the safety of the community.

Division 2 Inquiries

200   Power to require attendance of witnesses and production of documents

(1)  A judicial member may, by instrument in writing, require any person on whom the instrument is served personally or by post:

(a)  to appear before the Review Council for the purpose of giving evidence, or

(b)  to produce to the Review Council any document (including a doc