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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Correctional Services (Parole) Amendment
Bill 2015
A BILL FOR
An Act to amend the
Correctional
Services Act 1982
; and to make a related amendment to the
Freedom
of Information Act 1991
.
Contents
Part 2—Amendment
of Correctional Services Act 1982
4Amendment of section 33—Prisoners'
mail
5Amendment of section 64—Reports by
Board
6Amendment of section 67—Release on parole
by application to Board
7Amendment of section 68—Conditions of
release on parole
8Amendment of section
69—Duration of parole
10Amendment of section 71—Variation or
revocation of parole conditions
11Insertion of Part 6 Division 4
Division 4—Review of release on parole
of life prisoners
Subdivision 2—Parole Administrative
Review Commissioner
77BAppointment of
Commissioner
Subdivision 3—Reviews by
Commissioner
77ERight of review of Board
decision to release life prisoners on parole etc
77FEffect of review
proceedings on Board's decision
77GProceedings to
be heard in private
77HBoard to assist
Commissioner
77JCompulsory conferences for
prescribed reviewable decisions
77KPowers and
procedures of Commissioner
77LCommissioner to
proceed expeditiously
77NPrivilege and
public interest immunity not affected
77OConfidentiality
of information
77PProof of
decision of Commissioner
Schedule 1—Related amendment and
transitional provision
Part 1—Related amendment to Freedom
of Information Act 1991
1Amendment to Schedule 2—Exempt
agencies
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Correctional Services (Parole) Amendment
Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Correctional Services
Act 1982
4—Amendment
of section 33—Prisoners' mail
Section 33(7)—after paragraph (ba) insert:
(bb) to the Parole Administrative Review Commissioner
5—Amendment
of section 64—Reports by Board
Section 64(4)—delete subsection (4)
6—Amendment
of section 67—Release on parole by application to
Board
(1) Section 67(5) to (7c)—delete subsections (5) to (7c) (inclusive)
and substitute:
(5) Subject to
subsections (6)
to
(9)
(inclusive), the Board may, on an application under this section, order
that a prisoner be released from prison on parole on a day specified in the
order.
(6) Without derogating
from subsections (3a) and (4), the Board must not order that a
prisoner serving a sentence of life imprisonment for an offence of murder be
released on parole unless the Board is satisfied that the prisoner has
satisfactorily cooperated in the investigation of the offence (whether the
cooperation occurred before or after the prisoner was sentenced to
imprisonment).
(7) For the purposes of
subsection (6)
, the Board must take into account any report tendered to the Board from
the Commissioner of Police evaluating the prisoner's cooperation in the
investigation of the offence, including—
(a) the nature and extent of the prisoner's cooperation; and
(b) the timeliness of the cooperation; and
(c) the truthfulness, completeness and reliability of any information or
evidence provided by the prisoner; and
(d) the significance and usefulness of the prisoner's
cooperation.
(8) If the Board orders
the release on parole of a prisoner who is serving a sentence of life
imprisonment—
(a) the Board must provide a copy of the order and a written statement of
the reasons for making the order to the following persons:
(i) the CE;
(ii) the prisoner;
(iii) the Attorney-General;
(iv) the Commissioner of Police;
(v) the Commissioner for Victims' Rights;
(vi) if, in relation to an offence for which the prisoner was imprisoned,
there is a registered victim—the registered victim, unless the victim has
indicated to the Board that he or she does not wish to be so notified;
and
(b) the day of release specified in the order must be a day that falls
after the period within which an application for review of the order under
Division 4 may be made.
(9) If an order for
release on parole of a prisoner who is serving a sentence of life imprisonment
is stayed by operation of section 77F(1) (as a result of an application for
review of the order being made under Division 4), the release of the
prisoner will not take effect on the day specified in the order (and, a copy of
the application for review served on the CE is sufficient authority for the
continued detention of the prisoner in custody pending determination of the
review).
(2) Section 67(8)—delete "or the Governor"
(3) Section 67—after subsection (10) insert:
(11) For the purposes of this section, a reference to an offence of
murder includes—
(a) an offence of conspiracy to murder; and
(b) an offence of aiding, abetting, counselling or procuring the
commission of murder.
7—Amendment
of section 68—Conditions of release on parole
(1) Section 68(1)(a)(ia)—before "that the prisoner"
insert:
a condition
(2) Section 68(1)(a)(iii)—delete "in the order of the Governor under
section 67" and substitute:
by the Board
(3) Section 68(1)(b)—delete paragraph (b) and substitute:
(b) may be subject to any other condition to be effective until the
expiration of the period of parole (or such earlier date as is specified by the
Board), including a condition that, for the period of up to 1 year
commencing on the day on which the prisoner is released, the prisoner
must—
(i) reside at specified premises (including premises declared under this
Act to be a probation and parole hostel or a prison); and
(ii) undertake at specified places such activities and programs as
determined by the Board from time to time to assist in the reintegration of the
prisoner into the community.
(4) Section 68—after subsection (1) insert:
(1aaa) In addition, the Board must consider imposing a condition on the
release on parole of a prisoner serving a sentence of life imprisonment that the
prisoner be monitored by use of an electronic device to be effective until the
expiration of the period of parole (or such earlier date as is specified by the
Board).
(5) Section 68(1b) and (2)—delete "or recommending" wherever
occurring
8—Amendment
of section 69—Duration of parole
Section 69—after its present contents (now to be designated as
subsection (1)) insert:
(2) A prisoner serving a sentence of life imprisonment who is released on
parole after the commencement of this subsection will, unless the release is
cancelled or suspended, or the sentence is extinguished, remain on parole for
the remainder of the sentence.
Section 70—delete the section
10—Amendment
of section 71—Variation or revocation of parole
conditions
(1) Section 71(2) and (3)—delete subsections (2) and (3) and
substitute:
(2) Where a person has been released on parole from a sentence of life
imprisonment, the Board may, on the application of that person or an interested
person, or of its own motion, vary or revoke a condition to which the parole is
subject.
(3) The Board cannot—
(a) in the case of a person released on parole from a sentence other than
a sentence of life imprisonment—exercise its powers under this section of
its own motion, unless it has given reasonable notice of its intention to do so
to that person and has considered any submissions made by the person on the
matter; or
(b) in the case of a person released on parole from a sentence of life
imprisonment—exercise its powers under this section—
(i) of its own motion, unless it has given reasonable notice of its
intention to do so to that person and each interested person and has considered
any submissions made by any such person on the matter; or
(ii) on application from the person unless it has given reasonable notice
of its intention to do so to each interested person and has considered any
submissions made by any such person on the matter.
(2) Section 71(4)—delete "or recommendation"
(3) Section 71—after subsection (5) insert:
(6) In this section—
interested person means any of the following
persons:
(a) the Attorney-General;
(b) the Commissioner of Police;
(c) the Commissioner for Victims' Rights.
11—Insertion
of Part 6 Division 4
After Part 6 Division 3 insert:
Division 4—Review of release on parole of life
prisoners
Subdivision 1—Preliminary
77A—Interpretation
In this Division—
Australian Parliament means—
(a) the Parliament of this State or any other State of the Commonwealth;
or
(b) the Parliament of the Commonwealth; or
(c) a Legislative Assembly of a Territory of the Commonwealth;
Commissioner means the person appointed under
Subdivision 2 as the Parole Administrative Review Commissioner, or the
person from time to time appointed under that Subdivision to act as the Parole
Administrative Review Commissioner;
judicial body means a court, tribunal, body or person
invested by law with judicial or quasi-judicial powers;
judicial officer means a person who alone or with others
constitutes a judicial body;
prescribed reviewable decision means a reviewable decision of
a kind referred to in
paragraph (b)
or
(c)
of the definition of reviewable decision;
reviewable decision means any of the following decisions of
the Board in relation to a prisoner serving a sentence of life
imprisonment:
(a) a decision to order
the release of the prisoner on parole;
(b) a decision as to
the conditions to be imposed on the parole by the Board;
(c) a decision to
vary or revoke a condition to which the parole is subject.
Subdivision 2—Parole Administrative Review
Commissioner
77B—Appointment of
Commissioner
(1) There is to be a Parole Administrative Review Commissioner.
(2) The
Commissioner is to be appointed by the Governor for a term not exceeding
5 years, on terms and conditions determined by the Governor.
(3) A person appointed to be the Commissioner is, at the end of a term of
appointment, eligible for reappointment.
(4) A person is only eligible for appointment as the Commissioner if the
person—
(a) is a former judge of the High Court of Australia, the Federal Court of
Australia or the Supreme Court or any other court of a State or Territory of the
Commonwealth; and
(b) is not a judicial officer or member of an Australian
Parliament.
(5) The Commissioner's appointment may be terminated by the Governor on
the ground that the Commissioner—
(a) has been guilty of misconduct; or
(b) has been convicted of an offence punishable by imprisonment;
or
(c) is appointed to judicial office; or
(d) is nominated for election as a member of an Australian Parliament;
or
(e) becomes an insolvent under administration within the meaning of the
Corporations Act 2001 of the Commonwealth; or
(f) has, because of mental or physical incapacity, failed to carry out the
duties of the Commissioner satisfactorily.
(6) The Commissioner may resign by notice in writing to the
Governor.
(7) The Commissioner is a senior official for the purposes of the
Public
Sector (Honesty and Accountability) Act 1995
.
77C—Acting Commissioner
(1) The Governor may appoint a person to act as the Parole Administrative
Review Commissioner—
(a) during any period for which no person is for the time being appointed
as the Commissioner or the Commissioner is absent from, or unable to discharge,
official duties; or
(b) if the Commissioner is unable for any other reason to act in a
matter.
(2) The eligibility criteria that apply to the appointment of the
Commissioner apply to the appointment of a person as acting
Commissioner.
(3) The terms and conditions of appointment of an acting Commissioner will
be as determined by the Governor.
(4) The acting Commissioner is a senior official for the purposes of the
Public
Sector (Honesty and Accountability) Act 1995
.
77D—Staff
The Commissioner may, under an arrangement established by a Minister
administering an administrative unit of the Public Service, make use of the
services or staff of that administrative unit.
Subdivision 3—Reviews by
Commissioner
77E—Right of review of Board decision to release
life prisoners on parole etc
(1) Any of the
following persons may apply for a review by the Commissioner of a reviewable
decision:
(b) the Commissioner of Police;
(c) the Commissioner
for Victims' Rights.
(2) An application under this section—
(a) must be made within 60 days after notification of the reviewable
decision; and
(b) must, within 3 days of being made—
(i) be served personally on—
(A) the CE; and
(B) the prisoner; and
(ii) be served in a manner determined by the Commissioner on the Board and
each of the other persons who may apply under
subsection (1)
for a review of a reviewable decision.
(3) On a review, the Commissioner—
(a) will examine the reviewable decision on the evidence or material
before the Board; and
(b) may consider further evidence or material that the Commissioner
decides, in the circumstances of the particular case, to admit for the purposes
of the review.
(4) The Commissioner, on a review—
(a) is not bound by the rules of evidence but may inform himself or
herself as the Commissioner thinks fit; and
(b) must act according to equity, good conscience and the substantial
merits of the case without regard to legal technicalities and forms.
(5) The Commissioner must, on a review, give due weight to the reviewable
decision and the reasons for it and not depart from the decision except for
cogent reasons.
(6) The
Commissioner may, on a review under this section—
(a) affirm the reviewable decision; or
(b) vary the reviewable decision; or
(c) set aside the
reviewable decision and—
(i) substitute his or her own decision; or
(ii) send the
matter back to the Board for reconsideration in accordance with any directions
or recommendations that the Commissioner considers appropriate,
and, in any case, may make any order the Commissioner considers appropriate
(including any interim order pending the reconsideration and determination of
the matter by the Board, or any ancillary or consequential order, that the
Commissioner considers appropriate).
(7) The Commissioner must advise the parties to the review and the
prisoner of his or her decision on the review.
(8) The Commissioner must, if required to do so by the Supreme Court,
provide the Court with a copy of the reasons for his or her decision on a
particular review.
77F—Effect of review proceedings on Board's
decision
(1) The commencement of proceedings for the review of a reviewable
decision, other than a prescribed reviewable decision, stays the operation of
the decision.
(2) The commencement of proceedings for the review of a prescribed
reviewable decision does not affect the operation of the decision or prevent the
imposition, variation or revocation of a condition of parole (as the case
requires) unless an order is made under
subsection (3)
.
(3) On or after the
commencement of proceedings for the review of a prescribed reviewable decision,
the Commissioner may, on application or on his or her own initiative, make an
order staying or varying the operation or the implementation of the whole or a
part of the prescribed reviewable decision pending the determination of the
matter, or until such time (whether before or after the determination of the
matter) as the Commissioner may specify, if the Commissioner is satisfied that
it is just and reasonable in the circumstances to make the order.
(4) An order by the Commissioner under this section—
(a) is subject to such conditions as are specified in the order;
and
(b) may be varied or revoked by further order of the
Commissioner.
77G—Proceedings to be heard in
private
Proceedings for the review of a reviewable decision before the Commissioner
must be heard in private.
77H—Board to assist
Commissioner
(1) In proceedings
for the review of a reviewable decision, the Board must use its best endeavours
to help the Commissioner so that the Commissioner can make his or her decision
on the review.
(2) Without
limiting
subsection (1)
, the Board must provide the following to the Commissioner within a period
specified by the Commissioner (which must be reasonable):
(a) a written
statement of the reasons for the reviewable decision;
(b) any document or thing in the Board's possession or control that may be
relevant to the Commissioner's review of the reviewable decision.
(3) The Board must, in providing any document or thing under
subsection (2)
, take reasonable steps to identify the documents or things that were taken
into account in making the reviewable decision.
(4) If the
Commissioner considers that there are additional documents or things in the
Board's possession or control that may be relevant to the Commissioner's review
of the reviewable decision, the Commissioner may, by written notice, require the
Board to provide the documents or things.
(5) If the
Commissioner considers that the statement of reasons given under
subsection (2)(a)
is not adequate, the Commissioner may, by written notice, require the
Board to give the Commissioner an additional statement containing stated further
particulars.
(6) The Board must comply with a notice given under
subsection (4)
or
(5)
within the period stated in the notice.
(7) A requirement under this section that the Board give the Commissioner
information or a document or thing applies despite any provision in another Act
prohibiting or restricting the disclosure of the information or the information
contained in the document or thing.
(8) The Commissioner may examine any document or thing provided under this
section and draw any conclusions of fact it considers proper.
77I—Parties
The applicant and the Board are the parties to proceedings for the review
of a reviewable decision, and each of the other persons who may apply under
section 77E(1)
for a review of a reviewable decision has a right to appear and be heard
in the proceedings.
77J—Compulsory conferences for prescribed
reviewable decisions
(1) The Commissioner must, as soon as is reasonably practicable after the
commencement of proceedings for the review of a prescribed reviewable decision,
require the parties to the proceedings to attend a compulsory conference before
the presiding member or deputy presiding member of the Board for the purpose of
attempting to resolve the matters in dispute.
(2) A conference under this section is to be held in private.
(3) Subject to
subsection (4)
, evidence of anything said or done in the course of a conference under
this section is inadmissible in proceedings before the Commissioner except by
consent of all parties to the proceedings.
(4) The presiding
member or deputy presiding member of the Board who presided over a conference
under this section must report to the Commissioner on whether a settlement was
reached at the conference and, if so, the terms of the settlement and the
Commissioner may, without further inquiry, make such determination or order as
may be necessary to give effect to the settlement.
77K—Powers and procedures of
Commissioner
(1) The Commissioner may, for the purposes of proceedings before the
Commissioner—
(a) by summons signed by the Commissioner, require the attendance of a
person before the Commissioner; or
(b) by summons signed by the Commissioner, require a person to produce any
relevant documents; or
(c) require a person to furnish the Commissioner with a written report or
information in relation to any aspect of a matter before the Commissioner;
or
(d) require a person to make an oath or affirmation to answer truly any
questions put by the Commissioner, or a person appearing before the
Commissioner, that are relevant to any matter before the Commissioner;
or
(e) require any written report or information to be verified by statutory
declaration.
(2) A person who—
(a) having been served with a summons, fails, without reasonable excuse,
to attend, or to produce documents, as required by the summons; or
(b) misbehaves before the Commissioner, wilfully insults the Commissioner,
or interrupts proceedings before the Commissioner; or
(c) refuses, when required to do so by the Commissioner, to be sworn or to
affirm, or to answer any relevant question that the person would be compellable
to answer before a court,
is guilty of an offence.
Maximum penalty: $10 000.
(3) The Commissioner cannot allow intervention in proceedings before the
Commissioner by a person who is not a party to the proceedings, other than a
person who has a right to appear and be heard in the proceedings under
section 77I
(an interested person).
(4) The Commissioner
must give the parties and any interested person who has given written notice of
an intention to appear in proceedings reasonable notice of the time and place of
the proceedings.
(5) The Commissioner may make a determination in any proceedings in the
absence of a party to the proceedings or an interested person who has given
notice under
subsection (4)
if satisfied that the party or person (as the case requires) was given
reasonable opportunity to appear but failed to do so.
(6) If proceedings on a review are part-heard when a person ceases to hold
office as a Commissioner, the person may continue to act in the office of
Commissioner for the purpose of completing the review.
77L—Commissioner to proceed
expeditiously
The Commissioner must—
(a) commence any review as soon as possible after receipt of an
application for review (taking into account
section 77J
(if relevant)); and
(b) proceed as quickly as a proper conduct of the review allows;
and
(c) endeavour to complete any review as quickly as possible.
Subdivision 4—Other
matters
77M—Immunity from liability
No liability attaches to the Commissioner for any act or omission in good
faith in the exercise or purported exercise of powers or functions under this
Division.
77N—Privilege and public interest immunity not
affected
Nothing in this Division affects any rule or principle of law relating
to—
(a) legal professional privilege; or
(b) public interest immunity.
77O—Confidentiality of
information
A person must not disclose, or cause to be disclosed, information or
evidence relating to a review under this Division, or details relating to
proceedings conducted for the purposes of a review under this Division,
except—
(a) as authorised by the Commissioner or a court; or
(b) as otherwise authorised or required by this Act, the regulations or
any other Act or law.
Maximum penalty: $10 000.
77P—Proof of decision of
Commissioner
An apparently genuine document purporting to be a copy of a determination,
decision or finding of the Commissioner and to be certified as such by the
Commissioner will be accepted in any legal proceedings, in the absence of proof
to the contrary, as a true copy of a determination, decision or finding of the
Commissioner.
Schedule 1—Related
amendment and transitional provision
Part 1—Related amendment to Freedom of
Information Act 1991
1—Amendment
to Schedule 2—Exempt agencies
Schedule 2—after paragraph (j) insert:
(ja) the Parole Administrative Review Commissioner;
Part 2—Transitional
provision
(1) The amendments to
the
Correctional
Services Act 1982
made by
Part 2
of this Act do not apply to a prisoner who has been sentenced to life
imprisonment if, prior to the commencement of this clause—
(a) the prisoner has
been released on parole; or
(b) the Governor has ordered that the prisoner be released on parole;
or
(c) the Board has recommended to the Governor that the prisoner be
released on parole but the Governor has not, as at that commencement, made a
decision as to whether or not to approve the recommendation.
(2) However, if, after
the commencement of this clause—
(a) the release on parole of a prisoner who has been sentenced to life
imprisonment is cancelled; or
(b) the Governor does
not approve the recommendation of the Board that a prisoner who has been
sentenced to life imprisonment be released on parole,
the amendments to the
Correctional
Services Act 1982
made by
Part 2
of this Act will apply to the prisoner (including any application for
release on parole made by the prisoner after that commencement).