Crimes (Sentence Administration) Act 2005

The Act directly affects:

• Sentenced offenders serving terms of imprisonment (full-time or otherwise) or community-based sentences in the ACT.
• Remandees held in custody pending trial or sentencing.
• Parolees, ICO offenders, and persons subject to good behaviour orders.
• The Sentence Administration Board and its members.
• The director-general of the ACT Justice and Community Safety Directorate (as the operational authority for sentence management).
• Correctional centre staff and ACT Corrective Services.
• Victims of crime who are registered for victim information under Chapter 10.
• Interstate authorities, where prisoner transfer or parole order transfer provisions are engaged.

Human rights-based treatment: The Act imposes mandatory principles on the exercise of sentence administration functions. For sentenced offenders (section 7): respect and protect human rights; ensure decent, humane and just treatment; preclude torture and cruel, inhuman, or degrading treatment; promote rehabilitation and reintegration. For remandees (section 8): recognise and respect the presumption of innocence; ensure detention is not punitive; comply with Corrections Management Act conditions.

Full-time detention obligations: Section 24 sets out the offender's obligations while serving full-time detention, including the obligation to be in lawful custody except during lawfully authorised absences.

Intensive correction order conditions: Offenders on ICOs must comply with the conditions of the order, including community service work, reporting, and any special conditions. Failure to comply on two or more occasions triggers mandatory cancellation under section 69.

Notification of external administration by participants: In Chapter 11 (prisoner transfer), interstate authorities must be notified of transfer arrangements.

Board hearing participation: When the Board holds an inquiry into non-compliance or a parole matter, the affected offender must be given an opportunity to be heard (sections in Part 9.1 and Part 7.5).

Director-general allocation powers: The director-general may direct which correctional centre an offender serves their sentence in (section 27) and may issue guidelines for allocation. The director-general may also direct an offender's activities while in full-time detention (section 25).

Early release: Section 31 allows early release of an offender in specified circumstances.

Sentence Administration Board: The Board has broad powers to:

• Grant, vary, and cancel parole orders (Chapter 7).
• Conduct inquiries into non-compliance with ICOs, DATOs, good behaviour orders, and parole conditions (Chapter 9).
• Make mandatory cancellation orders where the statutory grounds are met (for example, section 69 for ICOs).
• Issue directions as part of parole conditions.

Mandatory cancellation: In Lewis v Australian Capital Territory [2020] HCA 26, the High Court confirmed that the Board's cancellation of periodic detention (now intensive correction) on establishment of two or more failures to perform is a mandatory exercise of the Board's power: "The decision by the board that the appellant had breached his obligations by failing to perform two periods of detention triggered the mandatory cancellation of his periodic detention by the board under s 69(2)." This mandatory quality means the Board cannot decline to cancel in those circumstances.

Parole supervision and conditions: The Board may impose conditions on parole orders including supervision, reporting, residence, and other requirements. The Board may vary conditions during the parole period.

Release at end of sentence: Section 32 deals with release at the end of sentence. Sections 33 provides that an offender must not be released if serving another sentence.

The Act does not create criminal offences for the conduct of sentenced offenders. Instead, non-compliance with orders leads to administrative consequences:

• Non-compliance with an ICO: Board inquiry; where established on two or more occasions, mandatory cancellation under section 69 and return to full-time detention to serve the balance of the sentence.
• Non-compliance with parole conditions: Board inquiry; cancellation of parole order and return to full-time detention.
• Non-compliance with DATO conditions: Board inquiry; varied or cancelled order.
• Non-compliance with good behaviour order: Board inquiry; potential forfeiture of the order and activation of the suspended sentence.
• Unlawful absence from full-time detention: Extension of sentence (section 30) by a period equal to the period of unlawful absence, plus any period prior to the offender surrendering or being returned.

In Lewis v ACT [2020] HCA 26, the High Court addressed the consequences of an invalid Board cancellation decision. The court held that even though the periodic detention order had not been validly cancelled, substantial damages were not available because the offender was not "lawfully at large" when taken into custody: his liberty was already circumscribed by the original sentence of imprisonment, and mandatory cancellation would inevitably have followed upon a valid inquiry.

Committal: When a court makes an imprisonment order, the offender is committed to custody. A warrant for imprisonment must be issued (section 12). The director-general receives and manages the offender.

ICO administration: Non-compliance by the offender must be established before the Board may cancel. The Board holds an inquiry under Chapter 9. The offender must be given the opportunity to be heard. Where non-compliance is established on two or more occasions, cancellation is mandatory.

Parole eligibility: After the non-parole period set by the court, the offender becomes eligible for parole. The Board considers parole applications and holds hearings. The Board may grant parole unconditionally, grant it subject to conditions, or refuse it.

Parole cancellation: If a parolee breaches conditions, the Board holds an inquiry, gives the parolee an opportunity to be heard, and may cancel the parole order.

Victim information: Registered victims (Chapter 10) are entitled to be notified of certain events, including the offender's release on parole or release at the end of sentence, subject to the Act's provisions.

Interstate transfer: Chapter 11 governs interstate transfers of prisoners. Arrangements are made between relevant interstate authorities. The Act contains provisions for recognising interstate parole orders.

Crimes (Sentencing) Act 2005 (ACT): Sets out the powers of courts to impose sentences and the criteria for sentencing. The CSAA 2005 administers sentences imposed under this Act. The non-parole period set by the court under the Sentencing Act is the starting point for parole eligibility under the CSAA 2005.

Corrections Management Act 2007 (ACT): Governs the management of prisoners and correctional centres. The CSAA 2005 requires conditions of detention to comply with the Corrections Management Act and the human rights principles in Chapter 2.

Human Rights Act 2004 (ACT): The Act's human rights principles in Chapter 2 align with the ACT Human Rights Act. Decisions under the CSAA 2005 engaging liberty rights must be made consistently with the Human Rights Act.

Legislation Act 2001 (ACT): Governs the interpretation and republication of ACT laws.

Prisoner transfer legislation: Chapter 11 engages interstate prisoner transfer legislation and corresponding laws of other Australian jurisdictions.

Mandatory cancellation leaves no discretion: As confirmed by Lewis v ACT [2020] HCA 26, where the grounds for mandatory cancellation of an ICO are established (two or more failures to perform), the Board has no discretion: it must cancel. Even if the cancellation decision is later found to be invalid (for example, due to procedural error), the offender's right to liberty was already circumscribed by the original sentence.

Procedural fairness requirements: Although the Board must cancel in defined circumstances, it must still afford the offender procedural fairness at the inquiry. A cancellation decision made without a valid opportunity to be heard may be invalid, as occurred in Lewis v ACT. The practical consequence of an invalid cancellation, however, is limited given the mandatory nature of the power.

Unlawful absence extends sentence automatically: Section 30 automatically extends the sentence by the period of unlawful absence. This is not a penalty imposed by a court; it is a statutory consequence that operates without any additional order.

Victim notifications create real obligations: Registered victims under Chapter 10 are entitled to be notified of offender movements including release and parole. Failure to notify can give rise to complaints and administrative consequences.

ICO non-compliance: An offender serving an ICO in lieu of full-time detention fails to report for community service work on three occasions. The director-general reports the non-compliance to the Board. The Board holds an inquiry, gives the offender an opportunity to be heard, and finds that non-compliance is established on two or more occasions. Under section 69, the Board must cancel the ICO. The offender is placed in full-time detention to serve the balance of the sentence.

Parole grant: An offender serving a sentence of 3 years with a non-parole period of 2 years becomes eligible for parole after 2 years. The Board holds a parole hearing, considers the offender's rehabilitation, risk to community, and proposed release plan, and grants a parole order subject to conditions including supervision and residence requirements.

Parole cancellation: A parolee fails to report to a supervisor as required by the parole order. The supervisor reports the breach to the Board. The Board holds an inquiry, finds the breach established, and cancels the parole order. The parolee is taken into custody to serve the balance of the sentence.

Interstate prisoner transfer: An ACT-sentenced prisoner requests transfer to New South Wales to be closer to family. The director-general applies under Chapter 11 to the NSW authority. On agreement, the prisoner is transferred and serves the sentence in NSW under NSW prison management arrangements.