(3) Nothing in subsection (1) prevents a person from being detained in prison under any other law.
19AU Attorney‑General may revoke parole order or licence
(1) The Attorney‑General may, by instrument in writing, revoke a parole order or licence at any time before the end of the parole period or licence period:
(a) if the offender has, during that period, failed to comply with a condition of the order or licence; or
(b) if there are reasonable grounds for suspecting that the offender has, during that period, so failed to comply;
and the instrument of revocation must specify the condition that was breached or is suspected of having been breached.
(2) Before revoking a parole order or a licence, the Attorney‑General must, subject to subsection (3), by notice in the prescribed form, notify the person to whom the order or licence relates of:
(a) the condition of the order or licence alleged to have been breached; and
(b) the fact that the Attorney‑General proposes to revoke the order or licence at the end of 14 days after the day the notice is issued unless the person, within that period, gives the Attorney‑General written reasons why the order or licence should not be revoked and those reasons are accepted by the Attorney‑General.
(3) Subsection (2) does not apply where:
(a) the person’s whereabouts are and remain, after reasonable inquiries on behalf of the Attorney‑General, unknown to the Attorney‑General; or
(b) there are circumstances of urgency that, in the opinion of the Attorney‑General, require the parole order or licence to be revoked without notice being given to the person; or
(ba) in the opinion of the Attorney‑General it is necessary to revoke the parole order or licence without giving notice to the person in the interests of ensuring the safety and protection of the community or of another person; or
(c) the person has left Australia; or
(d) in the opinion of the Attorney‑General it is necessary, in the interests of the administration of justice, to revoke the parole order or licence without giving notice to the person.
19AV Arrest of person whose parole order or licence revoked by Attorney‑General
(1) A constable may, without warrant, arrest a person whose parole order or licence has been revoked by the Attorney‑General.
(2) The Attorney‑General or the Director of Public Prosecutions may, in relation to a person whose parole order or licence has been revoked by the Attorney‑General, apply to a prescribed authority for a warrant in the form prescribed for the purposes of this subsection for the arrest of the person.
(3) A person who is arrested under subsection (1) or (2), must, as soon as practicable after that arrest, be brought before a prescribed authority in the State or Territory in which the person is arrested.
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19AW Where person on parole or licence notified of revocation
(1) Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied:
(a) that the person is the person named in that revocation order; and
(b) that the person was notified by the Attorney‑General of the proposal to make the revocation order; and
(c) that the revocation order is still in force;
the prescribed authority must issue a warrant, in the prescribed form:
(d) authorising any constable to take the person to a specified prison in the State or Territory in which the person was arrested; and
(e) directing that the person be detained in prison in that State or Territory to undergo imprisonment for the unserved part of the sentence, or of each sentence, of imprisonment (in this section called the outstanding sentence or sentences) that the person was serving or had yet to serve at the time of his or her release; and
(f) subject to subsections (3) and (3A), fixing a non‑parole period in respect of the outstanding sentence or sentences.
(2) If the prescribed authority cannot complete the hearing under subsection (1) immediately, the prescribed authority must issue a warrant for the remand of the person in custody pending completion of the hearing.
(3) The prescribed authority is not required to fix a non‑parole period under paragraph (1)(f) if:
(a) the prescribed authority considers it inappropriate to do so because of the serious nature of the breach of the conditions of the order or licence that led to its revocation; or
(b) the unserved part of the outstanding sentence or sentences is, or aggregates, 3 months or less.
(3A) Before fixing a non‑parole period under paragraph (1)(f) in respect of the outstanding sentence or sentences, the prescribed authority must have regard to the period of time spent by the person on parole or licence before the parole order or licence was revoked under subsection 19AU(1).
(4) Where a prescribed authority issues a warrant, the prescribed authority must specify in the warrant the particulars of the unserved part of each outstanding sentence and, if a non‑parole period is fixed, particulars of that period.
(5) A non‑parole period fixed under this section has effect as if it had been fixed by a court in respect of the outstanding sentence or sentences and section 19AL applies in relation to that non‑parole period according to its terms.
(6) Where a person brought before a prescribed authority under section 19AV is dealt with in accordance with this section, the unserved part of any outstanding sentence or sentences that the person was serving or had yet to serve at the time of his or her release, is to be reduced by any period of remand under subsection (2).
19AX Where person on parole or licence not notified of revocation
(1) Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied that the person so brought is the person named in that revocation order but is not satisfied that the person was notified by the Attorney‑General of the proposal to make that revocation order, the prescribed authority must:
(a) immediately notify the Attorney‑General that the person has been brought before that prescribed authority; and
(b) order that the person be detained in custody until the Attorney‑General orders that the revocation order be rescinded or until the completion of proceedings under subsection 19AW(1) as applied by subsection (6) of this section.
(2) Where the Attorney‑General is notified that a person has been brought before a particular prescribed authority, the Attorney‑General must, as soon as practicable, notify the person, in writing, of the conditions of the parole order or licence alleged to have been breached and request that the person give him or her, within 14 days of notification of those reasons, a written submission stating why that parole order or licence should not have been revoked.
(3) If, within 14 days of a person receiving notification under subsection (2), the person fails to make a written submission to the Attorney‑General, the Attorney‑General must, as soon as practicable after the end of that period, notify the prescribed authority of a decision not to rescind the revocation order.
(4) If, within 14 days of notification under subsection (2), the person makes a written submission to the Attorney‑General, the Attorney‑General must decide, as soon as practicable after receiving that submission, and on the basis of that submission and any other material the Attorney‑General considers to be relevant, whether or not to rescind the revocation order and must, as soon as practicable after so deciding, inform the prescribed authority and the person, in writing, of the decision.
(5) If the prescribed authority is notified of a decision to rescind the revocation order, the prescribed authority must immediately order the person to be released from prison.
(6) If the prescribed authority is notified of a decision not to rescind the revocation order made in respect of the person, subsection 19AW(1) applies to the person so as to authorise the issue of a warrant as if the prescribed authority had been satisfied of the matters referred to in paragraphs 19AW(1)(a), (b) and (c) and subsections 19AW(3), (4), (5) and (6) apply to that person according to their terms.
19AY Appeals in respect of warrants issued under subsection 19AW(1) or that subsection as applied
(1) Where a prescribed authority issues a warrant in respect of a person under subsection 19AW(1), or under that subsection as applied by section 19AX, the person may appeal to the Supreme Court of the State or Territory in which the person was arrested against:
(a) the issue of the warrant; or
(b) the calculation, for the purposes of the warrant, of the unserved part of any outstanding sentence; or
(c) the fixing, for the purposes of the warrant, of a non‑parole period or the refusal to fix such a period.
(2) An appeal may be begun by lodging a notice of appeal with the court within 21 days after the day on which the warrant to which the appeal relates was issued.
(3) An appeal is to be by way of rehearing, but the court may have regard to any evidence given before the prescribed authority.
(4) The court may, on the application of the person making the appeal, order the release of the person from prison pending the disposal of the appeal, on such conditions as the court determines, and, upon the court’s so doing, the warrant appealed against shall not, unless the person breaks a condition of his or her release, be executed or further executed before the appeal is disposed of.
(5) The court must:
(a) if the appeal is against the issue of the warrant—either confirm or revoke the warrant; or
(b) if the appeal is against the calculation of the unserved part of any outstanding sentence—either confirm the warrant or vary the warrant, so far as it relates to that calculation, as specified in the order; or
(c) if the appeal is against the fixing of a non‑parole period or the refusal to fix such a period—either confirm the warrant or vary the warrant, if it fixes a non‑parole period, as specified in the order.
(6) Where a warrant is revoked under paragraph (5)(a), the person to whom the warrant relates, if the court has not already ordered the person’s release under subsection (4), is to be released from prison immediately.
(7) In this section:
outstanding sentence has the same meaning as in section 19AW.
19AZ Evidence before prescribed authority
(1) A prescribed authority exercising any powers under this Division may take evidence on oath or affirmation and for that purpose may administer an oath or affirmation.
(2) A prescribed authority exercising any powers under this Division may summon a person to appear before the prescribed authority to give evidence and to produce such documents and articles (if any) as are referred to in the summons.
(3) A summons under this section shall be served in the same manner as a summons to a witness to appear before a court of summary jurisdiction in the State or Territory where the summons under this section is issued.
19AZA Disobedience of summons etc.
(1) A person who has been served with a summons to appear before a prescribed authority must not fail to appear in obedience to the summons.
Penalty: 10 penalty units.
(2) A person who has been served with a summons to produce a document or article to a prescribed authority shall not fail to produce the document or article.
Penalty: 10 penalty units.
(3) A person who appears before a prescribed authority shall not refuse to be sworn or make an affirmation or refuse to produce documents or articles, or to answer questions, that he or she is required by the prescribed authority to produce or answer.
Penalty: 10 penalty units.
(4) Subsections (1), (2) and (3) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) Subsections (1) and (2) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
19AZB Can person be released on parole or licence if earlier parole order or licence revoked?
A parole order may be made or a licence granted, even if a previous parole order or licence has been revoked.
Subdivision C—State and Territory laws providing for leave of absence, pre‑release etc.
19AZD State and Territory laws providing for leave of absence, pre‑release etc. to apply to federal offenders
(1) A law of a State or Territory providing for a State or Territory offender to be granted leave of absence from prison, including leave of absence granted by order of a court, applies to a federal offender who is serving a sentence in that State or Territory as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.
(2) A law of a State or Territory providing for a State or Territory offender imprisoned in that State or Territory to be released:
(a) up to 24 hours before the time at which his or her sentence would otherwise have ended; or
(b) where the release day falls on a Saturday, a Sunday or a day which is a public holiday—on the last day before such a day which is not a Saturday, a Sunday or a public holiday;
applies to a federal offender who is serving a sentence in that State or Territory as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.
(3) A law of a State or Territory providing for a State or Territory offender to be released from prison under a pre‑release permit scheme (however called) that is prescribed for the purposes of this subsection, applies to a federal offender who is serving a sentence in that State or Territory, subject to any conditions relating to eligibility to participate that are specified in the regulations that prescribe that scheme, as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.
Subdivision D—Discharge without conviction, conditional release and sentencing alternatives
19B Discharge of offenders without proceeding to conviction
(1) Where:
(a) a person is charged before a court with a federal offence or federal offences; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i) the character, antecedents, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c) dismiss the charge or charges in respect of which the court is so satisfied; or
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and
(iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
(1A) However, the court must not take into account under subsection (1) any form of customary law or cultural practice as a reason for:
(a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
(b) aggravating the seriousness of the criminal behaviour to which the offence relates.
(1B) In subsection (1A):
criminal behaviour includes:
(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
(b) any fault element relating to such a physical element.
(2) Where a court proposes to discharge a person in pursuance of an order made under subsection (1), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him or her:
(a) the purpose and effect of the proposed order;
(b) the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and
(c) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.
(2A) A person is not to be imprisoned for a failure to pay an amount required to be paid under an order made under this section.