9.69     When a person is sentenced to a term of imprisonment above a prescribed length,[126] a court generally imposes a non-parole period[127] as well as a head sentence.[128] Upon the expiration of the non-parole period, the offender may be conditionally released as a parolee, subject to parole conditions as set by the parole authority. Parolees are supervised by community corrections services, and must follow their reasonable directions. Breach of parole may result in a return to prison.

9.70     Parole does not commence upon the completion of a sentence. Rather, parole is part of the sentence. The Review of the Parole System of Victoria observed there to be a ‘lack of awareness generally that parole represents only conditional release’, and reiterated that ‘a parolee remains under sentence while on parole’.[129] As was noted by the NSW Law Reform Commission (NSWLRC):

an offender continues to serve his or her term of imprisonment while on parole: parole is an integral part of the original sentence … [P]arole is not a discount or leniency. Instead it is a component of the original sentence. The offender remains subject to conditions and restriction of liberty, and may be returned to prison if parole is revoked.[130]

9.71     The setting of a parole date is seen to incentivise good behaviour and rehabilitation while an offender is in prison, and parole is seen to facilitate prisoner reintegration back into society.[131] Parole generally involves case management to provide suitable accommodation, make referrals to required services, and help parolees manage financial, personal and other problems. Research published by the Australian Institute of Criminology in 2014 suggests that prisoners who receive parole have significantly lower rates of recidivism or commit less serious offences than those released unsupervised; and that parole is most effective when it involves active supervision that is rehabilitation focused.[132]As observed in the Review of the Parole System of Victoria, parole benefits not just the offender, but also the wider community, by ‘recognising that the wider community benefits from the rehabilitation of offenders’ through a decrease in recidivism and crime rates.[133]

9.72     Some Aboriginal and Torres Strait Islander prisoners who are eligible for parole instead serve out their entire head sentence in prison. The result is that these prisoners spend a greater proportion of their sentence in prison than is required under the relevant legislative schemes; that correctional facilities are put under additional strain due to the increased prison population; and that these Aboriginal and Torres Strait Islander prisoners are then released into the community without supervision at the end of their head sentence.

9.73     This issue was highlighted in the Prison to Work Report, which observed that large numbers of Aboriginal and Torres Strait Islander prisoners either did not apply for or receive parole. This was particularly the case in jurisdictions with high Aboriginal and Torres Strait Islander prison populations. For instance, in WA it was reported that 80% of Aboriginal and Torres Strait Islander prisoners in 2013–14 were not released on parole.[134] In 2014–15, 53% of prisoners in the NT served their full sentence in prison (meaning they were released unsupervised).[135]

9.74     The Evaluation of the Aboriginal Justice Agreement—Phase 2: Final Report, revealed that, in 2011, in Victoria, 67% of Aboriginal and Torres Strait Islander offenders released from prison were not released on parole.[136]

9.75     Stakeholders have articulated two key reasons why eligible Aboriginal and Torres Strait Islander prisoners may not apply for parole. First, eligible Aboriginal and Torres Strait Islander prisoners may believe that they are unlikely to be granted parole by the parole authority; this may be due living arrangements, previous offending, or lack of attendance in prison programs. It may also be related to a complex history in dealing with government representatives. Second, in jurisdictions that do not count time served on parole in the case of revocation, being granted parole creates too great a risk of increased prison time.

Recommendation 9–2               To maximise the number of eligible Aboriginal and Torres Strait Islander prisoners released on parole, state and territory governments should:

  • introduce statutory regimes of automatic court-ordered parole for sentences of under three years, supported by the provision of prison programs for prisoners serving short sentences; and
  • abolish parole revocation schemes that require the time spent on parole to be served again in prison if parole is revoked.

9.76     This recommendation aims to encourage eligible Aboriginal and Torres Strait Islanders to apply for parole, which would provide supported transition from prison to community life. As highlighted above, a supported transition into the community reduces the risk of reoffending and further incarceration.

9.77     The granting of parole takes one of two forms: automatic, or court-ordered parole and discretionary parole. Court-ordered parole permits automatic release on parole on the date set by the court without application to the parole authority at the end of the non-parole period. Discretionary parole requires that offenders sentenced to parole-eligible sentences must make an application to the relevant parole authority prior to the expiration of the non-parole period for specific authorisation for parole.

9.78     NSW, Queensland, and SA have legislative frameworks for court-ordered parole.[137] These jurisdictions operate under a mixed system of parole where prisoners on short sentences receive automatic court-ordered parole and prisoners on longer sentences are subject to discretionary parole.[138] NSW introduced court-ordered parole in 1983 following the 1978 Nagle Royal Commission into NSW prisons.[139] SA introduced court-ordered parole in 1984,[140] and Queensland in 2006,[141] with the objective of diverting low risk offenders from custody while ensuring post-release supervision.[142]

9.79     There is a form of court-ordered parole in WA. Parole eligibility is set by the sentencing court, and the Parole Review Board (PRB) determines if an eligible prisoner will be released on parole and under what conditions. There are two categories of prisoners for the purposes of parole: prescribed and others. A ‘prescribed prisoner’ includes personal violent offenders, and prior personal violent offenders who have reoffended.[143] Statute stipulates that the PRB may make a parole order for prescribed prisoners, and must make a parole order in respect of any other offender.[144] Meaning that, for all prisoners other than prescribed prisoners, parole is automatic—decided by offence type, not length.[145] Prescribed offences include assaults, threats, and stalking[146]—offence types that include a significant number of Aboriginal and Torres Strait Islander prisoners.[147]

9.80     In the ACT, NT, Tasmania and Victoria,[148] all offenders who are sentenced to parole-eligible sentences must apply for parole to the relevant parole authority prior to the expiration of the non-parole period, regardless of the length of the head sentence.

Court-ordered parole

9.81     There are advantages to court-ordered parole. Court-ordered parole ensures that greater numbers of low-level offenders are released on parole, thus limiting the number of offenders who are released to the community unsupervised.[149] Whether release on parole is automatic or by application, only prisoners who accept the conditions of parole—which in SA are set by the parole board—will be released on parole.[150]

9.82     A large proportion of Aboriginal and Torres Strait Islander prisoners receive a prison sentence that would enable them to receive court-ordered parole if available in all jurisdictions.[151]

9.83     The Prison to Work Report observed that, in NSW where court-ordered parole is available, a ‘large proportion’ of Aboriginal and Torres Strait Islander prisoners were granted parole on terms set by the court, rather than needing to apply for parole, noting:

Given the role that parole can play in ensuring offenders are supervised and supported during reintegration, the arrangements for granting parole can be a real benefit to Aboriginal and Torre Strait Islander prisoners whose complex needs and history of offending mean that they would not otherwise be granted parole on application.[152]

9.84     A 2016 review of the parole system in Queensland reported that court-ordered parole had been introduced in that jurisdiction in response to growing prisoner numbers; the ‘extraordinary’ growth in the number of people serving sentences of less than one year; and a decline in number of applications for release on parole that were being approved.[153] The majority of offenders who received court-ordered parole orders in 2015–16 in Queensland had received a prison sentence of less than 12 months.[154]

9.85     Stakeholders supported the introduction of court-ordered parole. Legal Aid WA advocated for the introduction of court-ordered parole based on the NSW model, observing that Aboriginal ‘offenders face difficulty in being granted parole due to limited resources and consequential lack of suitable prison rehabilitation programs’. The current system results in unfair outcomes that are outside of the control of the offender, and ‘greater use of automatic parole would assist in reducing the number of Aboriginal people in prison’, and provide for supervised release where currently the offender may be released without supervision. Legal Aid WA suggested a system that combined automatic parole and discretionary parole, depending on the level of seriousness of each offence. It suggested that court-ordered parole be available to offenders sentenced to a term of imprisonment of less than five years, where the offending had not involved sexual offending or serious violence—mixing the approaches of SA and Queensland.[155]

9.86     ALSWA also supported the expansion of the current WA scheme, suggesting that this would ‘place a far greater onus’ on government to ‘ensure that there are sufficient programs and services available for Aboriginal and Torres Strait Islander prisoners’ as the department will know that each ‘prisoner subject to automatic parole will be released on a specified date’.[156]

9.87     Jesuit Social Services had similar reasons for supporting court-ordered parole in the NT, where it noted court-ordered parole was ‘urgently needed’. In the NT, it was observed that often relevant programs are not available and parole is not granted, through no fault of the offender. It was also suggested that, if court-ordered parole existed, correctional services would be accountable to provide programs prior to the release.[157]

9.88     CLANT noted that, in the NT, prison numbers increased by 100% between 2005 and 2015, but grants of parole only increased by 20%, stating

it follows that there has either been a large decrease in the proportion of prisoners who apply for parole, or a large decrease in the proportion of grants of parole to applicants, or both. This is of serious concern, and should be addressed by way of legislative reform.[158]

9.89     CLANT supported the implementation of the NSW scheme of court-ordered parole, as did the Law Council of Australia.[159]

9.90     The Institute of Public Affairs did not support court-ordered parole and submitted that court-ordered parole had potential to ‘undermine the concept of corrections’.[160] The NSWLRC noted that court-ordered parole may affect one of the key functions of parole—the incentive for good behaviour:

Automatic parole … ensures that offenders (who are not sentenced to a fixed term) are supervised for a period and have the opportunity to attempt to reduce their recidivism risk. However, it cannot provide an incentive for good behaviour in custody or for offenders to participate in programs unless there is a means to revoke or override automatic parole for some offenders on this basis.[161]

9.91     In 2016, a BOCSAR study found that, after parole orders had expired, court-ordered parolees were more likely to reoffend than those released by the State Parole Authority (SPA), and suggested greater supports following parole in order to reduce their chances of reoffending.[162] BOCSAR suggested that SPA released parolees (ie, those released on discretionary parole) may be less likely to reoffend due to the ‘selective processes of the SPA in choosing who should be granted parole or because SPA parolees are more motivated to participate in rehabilitation programs while in custody’.[163]

9.92     BOCSAR also noted the likelihood that people serving short sentences may not have qualified for program inclusion due to their exit date from prison and other factors discussed above.[164] And, although this study appears to favour discretionary parole, the authors expressed favour for release on parole rather than unsupervised release and noted:

The relative rates of re-offending following court-ordered and Board-ordered parole is only one issue of importance in judging the merits of different parole regimes. There is good evidence that offenders subjected to parole supervision are less likely to re-offend than offenders released without any supervision.[165]

9.93     Nonetheless, in 2016, a review of Queensland’s parole system recommended retaining court-ordered parole as a way to keep down prison numbers and ensure supervised release of those on shorter sentences.[166] For similar reasons,[167] the NSWLRC also recommended retention of their scheme in 2014.[168]

9.94     Eligible Aboriginal and Torres Strait Islander prisoners may not apply for parole because they believe—rightly or wrongly—that they are unlikely to be granted parole by the parole authority. Court-ordered parole permits automatic release on parole on the date set by the court without application to the parole authority at the end of the non-parole period, and provides a solution for the set of circumstances when Aboriginal and Torres Strait Islander prisoners prefer to avoid coming before a parole authority. The ALRC recommends that the regimes in NSW, Queensland and SA be adopted in other states and territories.

Overriding court-ordered parole

9.95     An order for court-ordered parole does not guarantee release on the prescribed date. There are means to revoke the non-parole period when ‘exceptional circumstances’ arise after sentencing, where the prisoner would represent a ‘sufficiently significant danger’ to the community if released on parole such that the grant of parole ought not be made.[169]

9.96     The Crimes (Administration of Sentences) Regulation 2014 (NSW) sets out the circumstances in which the SPA can revoke an offender’s court-ordered parole while they are still in custody:

  • where the offender requests revocation;
  • where the SPA decides that the offender is unable to adapt to normal lawful community life; or
  • where the SPA decides that satisfactory post-release accommodation or plans have not been made or cannot be made.[170]

9.97     In NSW, the total number of people released to parole in 2015 was 6598. Of these, 5,625 were court-ordered parole. The SPA revoked 109 parole orders prior to release, of which 85% were court-based orders.[171]

9.98     The ALRC recognises that corrective services and parole authorities are well-placed to observe and make decisions about the suitability of prisoners for release on parole. The length of time that elapses between the time of sentence and the end of a non-parole period can be substantial, and there are many reasons why a person, once deemed suitable for parole, can present a risk to the community by the time the non-parole period has been served.

9.99     The 2016 Queensland Parole System Review: Final Report provided a summary outlining the importance of including a pre-release override mechanism for automatic parole:

Firstly, it operates to safeguard community safety by allowing an offender’s parole order to be suspended or cancelled on limited grounds before they are released to the community. This approach allows QCS [Queensland Corrective Services] to consider the offender’s behaviour close to release and, where appropriate, make a recommendation that the offender’s parole be amended, suspended or cancelled before they are released into the community. Secondly, the ability to suspend or cancel a parole order because of conduct in custody would, to some degree, aid in the maintenance of prison discipline by providing an offender with an incentive to behave while in custody. Finally, the system retains certainty for the Court, and for the community, as to the length of time in custody that will actually be served by a prisoner unless the offender, by his or her conduct while in prison, demonstrates an unacceptable risk to the community close to his or her release.[172]

9.100  Of the court-ordered parole jurisdictions, only NSW’s override mechanism has a statutory basis.[173] Queensland relies on a Court of Appeal decision.[174] SA appears not to have a pre-release safeguard at all. However, prisoners must accept any parole conditions set before release is granted.[175]

9.101  Court-ordered parole may be revoked before release due to unsuitable post-release accommodation, or because plans in relation to post-release accommodation have not, or cannot be made. This is a major hurdle for many Aboriginal and Torres Strait Islander prisoners.

9.102  Housing issues—particularly homelessness, inadequate housing, and over-crowding—tend to disproportionately affect Aboriginal and Torres Strait Islander peoples.[176] The NSWLRC summarised the issue:

Previous Australian research has found that between 7% and 11% of NSW prisoners were living in primary homelessness before their entry into custody. The term ‘primary homelessness’ is generally used to describe the circumstances of people living on the street, sleeping rough or living in cars and squats. People with transient living arrangements—living in refuges, shelters or couch surfing—are described as living in secondary homelessness … Corrective Services NSW reports that, in 2011–12, 5% of receptions in NSW prisons were living in primary homelessness prior to their entry into custody and over 50% were living in secondary homelessness. For those offenders who did have stable housing before entering custody, imprisonment can often mean that such housing is no longer available when the offender is approaching the parole date. Offenders who lived in mortgaged properties or private rental properties are likely to have lost their housing due to inability to pay while in custody. Some offenders will have lost access to their previous residence due to relationship or family breakdown. Offenders who were previously accommodated in public housing will have lost their tenancy after being in custody for more than three months.[177]

9.103  The NSWLRC further emphasised that:

One of the biggest issues … has been the difficulty that offenders with court based parole orders can have in arranging suitable post-release accommodation. Clause 222(1)(c) of the [Crimes (Administration of Sentences)] Regulation gives SPA the power to revoke a court based parole order before an offender is released if satisfactory accommodation or post-release arrangements have not been made or cannot be made. A lack of suitable accommodation is the main reason for SPA revoking parole prior to release.[178]

9.104  The Public Interest Advocacy Centre (PIAC) noted issues with court-ordered parole arising from a lack of accommodation as a particular obstacle for Aboriginal and Torres Strait Islander peoples:

Aboriginal and Torres Strait Islander people should not be imprisoned at disproportional rates, and for greater periods of time, simply because of a lack of housing options post-release.[179]

Ongoing need for prison programs, support and supervised parole

9.105  Stakeholders highlighted the importance of prison programs for people on short sentences and support and supervision while on parole even in jurisdictions with court-ordered parole. Legal Aid NSW noted the need for programs in prison in support of parole. It also stressed the importance of Aboriginal and Torres Strait Islander organisations’ participation in parole processes, and noted the positive impacts on rates of breach and revocation of supervised orders in areas where Aboriginal Client Service Officers are employed by Community Corrections.[180]

9.106  VALS stressed both a need for extra parole support services and a refocus on support and rehabilitation for parolees instead of ‘overly stringent supervision’:

Services like the VALS’ Reconnect program have proven successful in supporting prisoners on parole by providing a post-release worker who assists them in identifying and achieving goals, transitioning back into the community and meeting their parole conditions. VALS believes any changes to the parole system must be rehabilitation focused and increase funding to programs like Reconnect that have a proven track record of reducing reoffending.[181]

9.107  VALS noted that since the changes to the Victorian parole regime in 2013, there had been a sharp increase in prisoners ‘maxing out’ their sentences to avoid parole. This increased the prison population and the numbers of recidivists, as people were leaving prison without supervision.[182]

9.108  The ALRC encourages states and territories to provide appropriate prison programs so that people released on court-ordered parole have been provided with rehabilitative services in prison that aim to address offending behaviours and provide practical assistance.

Parole conditions and revocation of parole

9.109  All jurisdictions require supervision as a standard condition of parole, whether explicitly or in practice.[183] For example, a person subject to standard parole conditions in NSW must:

  • be of good behaviour;
  • not commit any offence;
  • adapt to normal lawful community life;
  • submit to the supervision and guidance of the Community Corrections Officer (hereafter referred to as “the Officer”);
  • report to the Officer;
  • be available for interview;
  • reside at an approved address;
  • permit the Officer to visit the offender’s residential address at any time;
  • not leave New South Wales without permission;
  • not leave Australia without permission;
  • enter employment or training arranged or agreed on by the Officer;
  • notify the Officer of any intention to change his or her employment;
  • not associate with any person or persons specified by the Officer;
  • not frequent or visit any place or district designated by the Officer; and
  • not use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained.[184]

9.110  Additional obligations can be imposed by the relevant parole authority. These may include, for example, electronic monitoring, abstinence from alcohol, psychological assessment and counselling (including drug and addiction counselling), that the offender not be involved in the control of an organisation, that the offender not associate with children, or that the offender not possess firearms.[185]

9.111  It is observed in the Prison to Work Report that complying with parole conditions can be a difficult task for many parolees, particularly when they are simultaneously searching and competing for employment opportunities.[186] This difficulty can be amplified for parolees in non-metropolitan communities who are relying on limited public transport options to meet their parole requirements, such as reporting for parole, visiting Centrelink, and attending interviews.[187]

9.112  The Queensland Parole System Review: Final Report found three key areas of concern in relation to management of parolees through the use of parole conditions:

  • first, that parole conditions are sometimes imposed which are not specificto the offending patterns and risks associated with the offender, and which may even be contrary to the offender reengaging with their support networks;
  • second, that the number of conditions imposed is sometimes excessive and ‘sets people up to fail’ by making offenders answerable to up to 50 conditions, and that excessive conditions result in offenders focusing their energies on meeting parole obligations rather than searching for a job, getting qualifications, or finding long-term accommodation; and
  • finally, that the circumstances of Aboriginal and Torres Strait Islander parolees are not taken into account, for example, by the setting of parole conditions which prevent return to community, or which restrict access to family members and support networks because they also have criminal histories.[188]

9.113  Breach of standard conditions by parolees appears to be common. For example, about half of revocations in NSW during 2011–12 were reportedly for technical breach of parole conditions—where no reoffending or criminal conduct had taken place. This included failures to reside at an approved address, to report, and to abstain from alcohol. [189] As was noted in the Prison to Work Report:

[P]risoners (and many service providers) commented on the difficulties involved with complying with as many as sixty parole conditions, particularly when it comes to associating with other people with criminal records, which often includes family members. A significant number of prisoners said that they had chosen to serve out their full sentence, as they were convinced they would be breached as soon as they were paroled.[190]

9.114  Standard conditions of parole can be difficult for Aboriginal and Torres Strait Islander people to comply with, especially where conditions of release clash with cultural obligations and prevent reconnection with family and community.[191]

9.115  Factors that particularly impact on Aboriginal and Torres Strait Islander parolees have been identified to include: remoteness; substance abuse issues; mental health issues; poor literacy skills; lack of access to appropriate programs; difficulty in obtaining suitable long-term housing; difficulty in finding stable employment; and issues around family violence, particularly for women.[192]

9.116  Legal Aid NSW stressed the need for parole conditions to be culturally appropriate and designed to support rehabilitation and reintegration: ‘parole conditions can be overly strict, rigid, and focused on monitoring. Most parole breaches are for a failure to reside as required by the parole conditions’.[193]

Treatment of time on parole upon revocation

9.117  Stakeholders drew attention to the operation of some parole revocation schemes that require time served on parole to be served again in prison if parole is revoked. The decision to return a parolee to prison usually sits with the parole authority, and not all breaches of parole will result in a return to prison. Where breaches of parole result in a return to prison, the length of the remaining prison term can be affected depending on the parole revocation scheme operating. There are two options:

  • Option 1: Time spent on parole, beginning on the date of release on parole and ending on the date of breach (or date of revocation), counts towards the head sentence (as in NSW, Queensland, SA, and WA);[194] or
  • Option 2: Time spent on parole, beginning on the date of release on parole and ending on the date of breach (or date of revocation), does not count towards the head sentence, and must be served again in prison upon the parolee’s return (as in the ACT, the NT, Tasmania and Victoria).[195]

9.118  Option 2 has potential adverse consequences. It extends the time a person serves under sentence[196] and it operates as a disincentive for eligible people to apply for parole,[197] increasing the prison population and the number of people released from prison without supervision. Further, as noted by Legal Aid ACT, the provisions are also ‘unnecessarily punitive. In effect, they impose an ‘additional sentence’ on offenders, for small contraventions that are often of a civil rather than criminal nature’.[198]

9.119  The Attorney-General and Minister for Justice of the NT reported that the rate of eligible people declining parole was growing, and that up to 47% of people who declined parole between January 2016 and February 2017 did so because conditions on parole were considered too onerous and parole was too hard.[199]

9.120  The NT sought to address this by amending the Parole Act (NT) in August 2017 so that an offender whose conduct breaches the conditions of their parole may be reimprisoned for a short term as a sanction. This term of imprisonment does not revoke parole, so that when completed, the person picks up their parole where they left off. If the breach is serious or repetitive however, the person still returns to prison and any parole period is not counted as time served (except for any previous term of imprisonment as a sanction).[200] CLANT noted that, while these amendments are likely to decrease the severity of the current regime, it still supported the recommendation to abolish the repayment of ‘street time’ in the NT.[201] Aboriginal Legal Service NSW/ACT supported amending parole in the ACT to recognise ‘time served’ under sentence in the community if parole is later revoked.[202]

9.121  Stakeholders expressed strong concerns over parole revocation schemes that discounted ‘street time’ on revocation, and the affect these may have on Aboriginal and Torres Strait Islander prisoners.[203]

9.122  VALS expressed strong support for this abolition of street time regimes, noting:

Under the current system in Victoria parolees can have parole revoked for a minor breach, such as being minutes late to a curfew, and be back in prison serving the full remainder of their sentence. Recognising time spent on parole is a way of recognising and rewarding the positive actions of parolees towards rehabilitation and is in stark contrast to the current system in Victoria, which is a punitive approach that provides little incentive for parolees to comply with parole conditions and severe punishment, such as a separate criminal conviction, for breaches of parole.[204]

9.123  Statutory provisions that stipulate that time spent on parole does not count as time served if the parolee returns to prison due to a breach can greatly increase a person’s time under sentence. Accordingly it can act as a disincentive for Aboriginal and Torres Strait Islander people—who can find compliance with standard conditions difficult—to apply for parole. The ALRC recommends the immediate abolition of the relevant provisions, and the adoption of regimes that count time on parole as time served if parole is revoked.