ANNEXURE A: Sentence Administration Board

2020-21: The Sentence Administration Board’s Year at a Glance

Contributing to higher-level outcomes such as reducing recidivism

The Sentence Administration Board (the Board) relies on annual reporting by the Productivity Commission in its Report on Government Services (ROGS 2021)[1] to monitor how its work has contributed to higher-level outcomes. ROGS 2021 confirms an ongoing trend which is that the number and proportion of sentenced persons who are subject to community corrections orders and not in prison continues to grow.
It is noted here that the community corrections system is part of ACT Corrective Services (ACTCS). Given the role that the Board has in managing community corrections orders, the Board’s workload is similarly increasing. Also, the Board’s role, and that of the community corrections system as a whole, is becoming even more critical to the success of the corrective services system, and the justice system as well.

The two ROGS indicators most relevant to the Board are as follows:

  • Return to corrections within two years of those discharged from a community corrections order (community corrections recidivism), and ideally the results for this indicator would show a decrease, and
  • successful completion of a community corrections order (community corrections completion),
    and ideally the results for this indicator would show an increase.

The ACT results as reported in ROGS 2021 for the two indicators listed above have some positives that are detailed later below but can be summarised as follows:

  • Community corrections recidivism in the ACT is well below the national average, is the lowest that the ACT has recorded for two years, and is well below the recidivism of those being released from prison; and
  • the majority of community corrections orders are successfully completed, continuing a trend from prior years.

These positive results are especially noteworthy given that this outcome has been achieved while the number of offenders on community corrections orders has increased. The results suggest that there are many strengths to the corrective services system, including the community corrections system, in the ACT. The Board accepts that any level of recidivism is a concern. Women and Indigenous offenders continue to have lower community corrections completion than men and non-Indigenous offenders, which is another cause for concern.

Working to high standards while managing an increased workload

The Board has a statutory role to administer sentences imposed by courts on offenders. In doing so, the Crimes (Sentence Administration) Act 2005 (the CSA Act) refers to the Board ‘having regard to the principle that the public interest is of primary importance’.  Accordingly, considering the public interest which includes community safety, within a human rights framework, underpins the work of the Board. The Board observes natural justice in its proceedings and decision-making. It works in a manner that is therapeutic and problem-solving. The Board continues to be one of the few parole bodies in Australia subject to such
a comprehensive range of legal and practice requirements.

In 2020-21, the majority of the Board’s work continued to be deciding whether to grant parole or re-instate an Intensive Correction Order (ICO), managing some offenders more intensively while on parole (management hearings), and deciding if alleged breaches of parole and ICOs are proved and if so then deciding the appropriate sanctions for these breaches. Under the ACT Charter of Rights for Victims of Crime (ACT Victim’s Charter), the Board must hear from eligible victims where practicable.

During 2020-21, the Board considered significantly more matters, and hence held significantly more sitting days than in the prior year. This result continues a trend of an increasing workload for the Board. It is caused by the growing number of persons subject to community corrections orders, legislative reforms such as the introduction of ICOs and the ACT Victims Charter, and the Board working in a problem-solving and therapeutic manner to achieve less recidivism and better completion of community corrections orders.

Matters about breaches of community corrections orders i.e. breaches of parole or ICOs made up the majority of the extra workload in 2020-21 - parole breach matters increased by 43.1% and ICO breach matters increased by 17.1% compared to the prior year.

The Board aims to hear matters in a timely manner in the interests of human rights and community safety. Ideal time frames were often not achieved during 2020-21 due to the increased workload and resources then available. Nonetheless, the usual time frames for the Board to initially consider matters is in many matters much shorter than the comparable time frames some years ago. Importantly, all statutory time frames for the Board to finalise matters during the reporting period were met.

The Board issued a record number of arrest warrants in breach matters during the year – there was an extraordinary 95.9% increase in warrants being issued compared to the prior year. The majority of these warrants (53.1%) were issued during a teleconferenced hearing where the offender was participating, but
a warrant had to be issued because they were not present in-person – teleconferenced hearings are not the Board’s preferred manner for conducting hearings for this and other reasons. In short, the increase in warrants is due to arrangements in place for the COVID emergency, and also the fact that the Board no longer has a venue where it can safely conduct in-person hearings.

Implementing a major law reform, the ACT Victim’s Charter

The ACT Victims Charter commenced on 1 January 2021 and the Board fully supports this important new law. It introduces a charter of rights for victims and imposes additional duties on the Board. Eligible victims now have a right to give both written and oral evidence, resulting in more Board sitting days. Implementing the ACT Victim’s Charter has required considerable work by the Board’s judicial members and the Secretariat, which is ongoing.

Adapting to the COVID-19 emergency

Changes have been made to the usual operations of the Board in order to meet COVID-19 emergency health requirements. The Board has reluctantly conducted most of its hearings by teleconference or using Microsoft Teams software for this reason, and also due to the lack of a venue to conduct safe in-person hearings as explained later below.

Temporary legislative measures have been enacted due to the COVID-19 emergency in the ACT, and the Board has implemented, and adjusted to, them. The Board has a concern about one measure in particular that significantly changed arrangements for managing offenders subject to community corrections orders, in that ACT Corrective Services officers can now deal with many breaches of such orders and the Board considers this presents community safety risks.  These risks are discussed in more detail below.

Improving governance, planning, and processes

In late 2020, a Statement of Expectations and Statement of Intent were exchanged by the Board with the ACT Government and published, to provide transparency and clarity about the Board’s governance, priorities, relations with government and support by government. These statements can be found at https://justice.act.gov.au/safer-communities/sentence-administration-board/statement-expectations-and-intent.

The Board has finalised a plan for 2021-23 which is in line with the Statement of Expectations referred to above and the statutory requirements which underpin the Board’s work.

The Board continues to apply its Conflict of Interest and Bias Policy to support its independence and lawful decision making. It uses the Council of Australasian Tribunals Manual as a guide.

An important review of parole processes was undertaken by the ACT Ombudsman’s Office. In late 2020 the Ombudsman’s Office published its Report on Parole Processes at the Alexander Maconochie Centre[2] in which is makes 15 recommendations - if implemented these will improve the parole process and outcomes. The ACT government agreed to all of the recommendations. 

Working to secure a safe and reliable venue for in-person hearings

At this time, no reliable venue for safe in-person hearings is available to the Board. Until some years ago, the Board sat in the ACT Courts Complex and held in-person hearings unless other arrangements were required. However, ACT Courts advised that the Board is not to sit in the ACT Courts Complex. This development is of concern to the Board and presents a risk to the community. At 30 June 2021, 19.6% (9) of the warrants issued by the Board during 2020-21 were unexecuted warrants for offenders who participated in a teleconferenced hearing and had their order cancelled or suspended. These 9 unexecuted warrants would be wholly avoided if the Board were to return to holding its hearings in-person in the ACT Courts Complex, once the COVID emergency ends. 

Background to the Sentence Administration Board

The Board makes decisions under the Crimes (Sentence Administration) Act 2005 (the CSA Act) and related regulations (Crimes (Sentence Administration) Regulation 2006). Its primary objective is to ensure as far as practicable that the sentences imposed by courts are given effect. The Board has a range of decisions it can make. Most of its work is using its ‘supervisory powers’ under the CSA Act, particularly deciding about applications for release to parole, re-instatement of ICOs, breaches of parole, breaches of ICOs, conducting management hearings into a parolee’s progress and compliance in the community, and deciding about overseas travel requests by those on parole or subject to an ICO.

Under the Crimes Act 1914 (Commonwealth) the Board does not have jurisdiction to make decisions about parole or breaches of parole or ICOs for federal offenders, and these matters are referred by the ACT CS to the relevant Commonwealth officer or sentencing court.

The enactment in 2020 of a COVD-measure means that ACT CS officers now have the power to deal with a wide range of breaches of parole and ICOs for any offender. This is a major change in arrangements for managing offenders in the ACT, as discussed in more detail later, and one that the Board does not support in its current form.

The Board is an administrative body which makes decisions independently and not under the direction of the ACT government or its agencies. The Board is like a tribunal which means that it can only do what legislation authorises it to do; it does not have the inherent powers of a court. The CSA Act establishes the Board and provides the main legislative basis for its operations and decisions, but other legislation may be relevant depending on the case.

The Board is subject to statutory and common law duties, including applying the principles of natural justice and operating in accordance with the Human Rights Act 2004 (the HR Act). The rules of evidence do not apply to Board hearings; however, they offer a guide to how hearings are conducted. Board hearings are informal and fair, and the Board responds to special needs of persons appearing before it when known and as required.

The Board currently sits at least once per week on Tuesdays, and usually also on Thursdays and on other days where required, subject to resources. In the absence of a venue to safely conduct in-person hearings and due to the COVID-19 emergency, the Board currently sits at the premises of ACT Corrective Services and conducts all its hearings by teleconference or using Microsoft Teams software.

The Board’s lists are organised into three divisions that alternate on scheduled sitting days. The divisions are each chaired by the same judicial member, who chairs a Board of three members when exercising supervisory powers. To support efficiency, sound case management and a therapeutic approach to its work, wherever possible cases are adjourned to the same division so that the same judicial member sits on a case until a final decision is made. Board hearings and outcomes of Board proceedings are not public, unless the Board decides otherwise.

The Board is hosted for administrative assistance by ACT Corrective Services (ACT CS) and is supported by the Sentence Administration Board Secretariat (the Secretariat) which is staffed by officers of ACT CS.
The Board acknowledges the support provided to it by the acting Commissioner of ACT CS, Mr Ray Johnson APM, and the staff of ACT CS. The Board particularly acknowledges the quality and conscientious support provided to it by the staff of the Secretariat.

The Secretariat is the point of contact for the Board. The Secretariat's contact details are as follows:

ACT Sentence Administration Board
GPO Box 158
Canberra ACT 2601
Phone: (02) 6207 1563
Email: sab.secretariat@act.gov.au

Further information about the Board is available on the Board’s webpages at www.justice.act.gov.au/safer-communities/sentence-administration-board

Membership of the Board

Members are appointed following a publicly advertised merits-based process by the Attorney-General for a period not exceeding three years.  There are currently 11 members of the Board, who were all appointed in 2020 and have three-year terms.

Membership of the Board is currently as follows:

Chair

Ms Laura Beacroft (appointed 14 May 2020 –13 May 2023)

Deputy Chairs

Mr Philip Moss AM (appointed 14 May 2020 – 13 May 2023)
Mr Dominic Mulligan (appointed 14 May 2020 – 13 May 2023

Members

Mr Donald Malcolmson (appointed 14 May 2020– 13 May 2023)
Ms Deborah Evans (appointed14 May 2020 – 13 May 2023 )
Mr Peter Hyndal (appointed 14 May 2020 – 13 May 2023)
Ms Janine Bromwich (appointed 14 May 2020– 13 May 2023)
Dr John Cianchi (appointed 14 May 2020 – 13 May 2023)
Ms Leanne Close APM (appointed 14 May 2020 – 13 May 2023)
Ms Mirjana Wilson (appointed 14 May 2020 – 13 May 2023)
ACT Policing representative: Superintendent Matthew Heather, Judicial Operations and Family Violence Operations (appointed 14 May 2020 – 13 May 2023)

Vital and complex work undertaken by the Board

Interstate reviews

The work of the Board and similar parole bodies in Australia is vital and complex. Over the past decade there have been various significant reviews of parole and community corrections arrangements in Australia, the most recent being a 2016 review of the Queensland parole system. The main purpose of parole was set out in the report of that review:

“the only rationale [for parole] is to keep the community safe from crime… [the purpose of parole is to] reintegrate the prisoner into the community… [in order] to decrease the chance that a prisoner will ever reoffend…parole is just a matter of timing; except for those who are sentenced
to life imprisonment, every prisoner will have to be released eventually”[3].

The major recommendations of these interstate reviews of parole and community corrections arrangements have been implemented by the relevant governments. Such reviews inform discussion about improvements in the ACT. They emphasise the importance of the Board having key up-to-date information available to it about the risks of re-offending in all matters, and also that it be able to promptly review matters where there are alleged re-offending, breaches of orders or other risky behaviours.

 It is important to note that some of the key problems identified in interstate reviews are not present in the ACT. For example, the 2016 review in Queensland, similar to an earlier 2013 review of the parole system in Victoria[4], recommended use of the LSI – R[5]. The latter is a risk assessment tool that has been used in the ACT system for some time[6]. In the ACT, the Board makes its decisions informed by the results of such risk tools, along with assessments of community corrections officers, expert reports about an offender’s suitability for and progress in offence-specific programs such as adult sex offenders’ programs, other information including from prior court proceedings, and also evidence from the offender and where available input from the victim/s.

Public opinion and concerns

The Board acknowledges concerns among the public about the risks of offenders serving all or part of their sentences in the community, for example, under a parole order or an ICO. On this point, in 2015 a phone survey was conducted of 1 200 persons across Australia, followed by in-depth interviews with some of them about parole. A significant percentage of respondents indicated support for parole and its rehabilitative goals. There was a majority view that parole should vary depending on the offence, with much less support for it in the case of offences such as murder and child sexual assault and for offenders who breach parole.[7] Secondly, a majority indicated a high-level of confidence in parole board decision-making and had a view that such boards are better placed than judges to consider parole release. However, a majority were concerned that prison over-crowding affects decision-making, when community safety should be the major concern.[8] There was also a majority view that victims should have a say in release decisions. A majority indicated that parole board decisions should be made public. On the latter point, the authors of the survey report acknowledged making all parole body decisions public raises complex issues, citing Callinan in his review of the Victorian parole system.[9] Such an approach raises issues about how this measure can be resourced, and also whether the administrative requirements of public proceedings and decisions might overtake the critical focus by a parole body on community safety.[10] 

The Board’s Annual Report is intended to assist in informing the public about the Board’s work, and so it
is important to respond to the public views identified in the above-mentioned survey. The Board’s primary criteria for release on parole is the public interest, which involves considering community safety in its decision-making. While Board proceedings are not usually open to the public, the Board has a discretion
to do so including making a decision public in an appropriate case.  In this respect, the Board is developing
a Practice Note about exercising this discretion that will be published in 2021.

Pro-active, therapeutic, and problem-solving approach

The Board takes a proactive approach in performing its functions in that it focuses on compliance with reporting conditions and factors in the offender’s life that cause their offending. The evidence suggests this focus can contribute to better community safety. On this point, reviews of parole and community corrections in Australia and comparable nations emphasise that a pro-active parole system, supported by quality rehabilitation and reintegration services, reduces reoffending. For example, a 2014 evaluation of the effectiveness of parole in NSW studied recidivism of 7 494 offenders released between 2009 and 2010. It concluded that active rehabilitation-focused supervision which targets offenders' criminogenic need and risk factors (i.e. supervision that does not just target compliance with reporting conditions) can reduce recidivism. Offenders who are actively supervised took “longer to commit a new offence, were less likely to commit a new [serious]…offence and committed fewer offences than offenders who were released unconditionally into the community [without supervision]”[11].

The Board applies a therapeutic and problem-solving approach. This approach is consistent with the CSA Act, natural justice, and human rights. It contributes to the Board delivering the best possible outcomes for the community, offenders, and victims. This approach is consistent with the ACT Government’s “Aboriginal and Torres Strait Islander Agreement 2019-2028”[12] and the “Reducing Recidivism in the ACT by 25% by 2025 Plan”[13].

A therapeutic and problem-solving approach is not ‘soft’ on offenders and is consistent with protecting the public interest, victims, and community safety. It can reduce non-compliance and re-offending, and therefore protect community safety and deliver efficiencies in the Board’s work. The Board is developing a Practice Note to support working therapeutically and in a problem-solving manner, which will be published in 2021. This initiative will be in line with other initiatives to embed similar approaches into court and tribunal practices in Australia and Canada.[14]

Continuous improvement and adapting to the COVID-19 emergency

The Board works continuously to improve its operations and its contribution to community safety and to reduce recidivism. During the COVID-19 emergency the Board has quickly adapted to meet health requirements. Also, it has implemented temporary COVID-19 emergency legislative changes as necessary.

During the COVID-19 emergency, changes to the law that apply to the Board were enacted. An important new provision provides for the Board to have discretion to give a warning and not impose a three or seven day custodial sentence when an offender has breached their ICO and already received three warnings for prior breaches of the ICO in a 12-month period. During 2020-21, this temporary discretion had been applied seven times by the Board, and in this way has reduced the number of offenders returned to prison. Generally, it is applied where the offender has taken action to overcome the causes of the breach by the time of the Board hearing, for example they have entered more intensive drug rehabilitation. The Board has requested that this temporary legislative measure be made permanent.

During the COVID-19 public health emergency, the Crimes (Sentence Administration) COVID-19 Emergency Guidelines 2020 were notified and brought into effect following enactment of the COVID-19 Emergency Response Legislation Amendment Act 2020 which amended the CSA Act. The amendment and Guidelines (the new law) empower ACT CS community corrections officers who allege certain types of breaches to also determine that no action is required or that a warning is required. They have this discretion to deal with breaches for any offender, including serious offenders such as child sex offenders and family violence offenders. Unfortunately, the Board was not consulted before the passage of the new law, but has subsequently raised concerns about whether the new law is necessary during the COVID-19 emergency given the Board has achieved reasonable timeliness in hearing breach matters during the emergency.

During 2020-21, ACT CS community corrections made 20 reports to the SAB that it had exercised the power to impose a warning for a breach. When the ACT CS decides to deal with a breach and take no further action, this action is not notified to the Board, so the total number of instances is not known by the Board. The Board has requested that this temporary legislative measure not be made permanent and that it be repealed.

During 2020-21, the Board continued to require management hearings for offenders who pose special risks, even if there were no breaches before the Board. The Board continued to work with the Secretariat to reduce the time from when an alleged breach is received to when it is first considered by the Board, in order to limit potential risks of re-offending by offenders living in the community. In part, this approach has involved the Board negotiating more stable resources to meet contemporary demands on it. The Chair continued to meet with the Secretariat staff to case-manage the workload of the Board and more complex matters coming before the Board. With the assistance of the Secretariat, the Board has adjusted processes in the interests of efficiency. The Chair and Secretariat continued to update the Board’s webpages as necessary, which are now hosted on the website of the Justice and Community Services Directorate.

The Board continues to have no reliable reporting and data collection system. However, it developed a modest monthly report which has been used to prepare the Annual Report.

The judicial members met with a range of stakeholders to consider ways to improve Board operations.
They are in the process of settling a Protocol with a key area of ACT CS, the community corrections team, to better support Board operations, decision-making and faster resolution of systemic issues. Also, a Protocol with the Victims of Crime Commissioner is being developed to support the transfer of the victim’s liaison officer to that office and to implement of the Board’s responsibilities under the ACT Victim’s Charter.

The Board exchanged a Statement of Expectations and Statement of Intent with the ACT Attorney-General to support transparency and clarity about the Board’s governance, priorities, relations with government and support by government. They were published in late 2020 and can be found at https://justice.act.gov.au/safer-communities/sentence-administration-board/statement-expectations-and-intent Such documents are commonly in place for statutory entities.[15] The Board developed a 2021-2023 plan to guide the Board’s strategic focus, in line with the Statement of Expectations referred to above and the statutory requirements which underpin the Board’s work. It focuses on supporting sound and efficient decision-making by the Board, developing various practice notes and policies to guide the Board and provide more transparency about its operations, and securing a reliable venue that will allow it to return to in-person hearings after the COVID-19 emergency ends.

The Board continues to apply its Conflict of Interest and Bias Policy to support its independence and lawful decision making. The aim of the Policy is to ensure the Board and its members meet the requirements of human rights and the CSA Act provisions in relation to managing conflict of interest (section 177). It also aims to ensure that the Board meets the principles of natural justice, particularly its second pillar: the twin pillars of natural justice are first, a fair opportunity to be heard, and secondly to have a case considered by a fair-minded person and body open to its merits. Many other similar bodies to the Board are required to meet the principles of natural justice. The Council of Australasian Tribunals publishes and regularly updates a “Practice Manual for Tribunals” (2020) to provide guidance to Tribunals and Boards in this respect[16].
The Board uses the manual as a guide in its work.

Board members met to enhance their knowledge and skills. There were two full Board meetings held for this purpose in 2020-21.

The judicial members continued to contribute to various law reforms including a range of urgent law reforms during the COVID-19 emergency and have overseen their implementation. The Chair continued to participate in the Victims Advisory Board of the ACT Government and provided input for to the development of the ACT Victim’s Charter which commenced on 1 January 2021[17]. Implementing the ACT Victim’s Charter has required the Secretariat and the judicial members to undertake considerable work which is acknowledged and ongoing at the time of writing.

Profile of the Board’s Work 2020-21

The Board sat on 81 days, which is an increase in sitting days of 28.6% from the previous year (63 days in the prior year). Changes have been made to the usual operations of the Board to meet COVID-19 requirements, most significantly the Board by necessity conducts most of its hearings by teleconference or using Microsoft Team. Despite the challenges presented by COVID-19, the Board was able to sit significantly more than the prior year, by conducting most hearings by teleconference
or Project Teams.

The Board aims to hear matters in a timely manner. The Board aims to hold an initial hearing for breach matters within two weeks or sooner from the date of a breach notification – however this time frame has often not been able to be met over the past year due to the rising numbers of breach matters and current resources. During the year, the Board instituted a new modest reporting system that monitors timeliness. As at 30 June 2021, parole breach matters were taking on average 25.8 days and ICO breaches were taking on average 32.4 days to be first considered by the Board unless a warrant was issued earlier.

Due to the pressures of meeting time frames for breach matters which are prioritised in the interests of community safety, time frames for parole application matters were less than ideal. At 30 June 2021, parole application matters were taking 91.7 days on average, from receipt of an application to the Board’s initial paper-based inquiry. This time is in part required to allow ACT CS to prepare a pre-release report including an assessment of the suitability of proposed community accommodation. The Board is required by the CSA Act to finalise its decision about the parole application within 60 days of opening a hearing.  The Board met this time frame in all cases. As at 30 June 2021, parole applications were taking 170 days on average from receipt of the application to be finalised. Applications for re-instatement of an Intensive Correction Order (ICO) have no statutory time frames relating to finalisation, but the Board aims to hold the initial inquiry within 30-days of receipt of the application, given certain requirements of the CSA Act. As at 30 June 2021, ICO re-instatements were taking 75 days on average to be finalised. The Board aims to reduce these time frames in 2021-22 through a number of initiatives set out later.

The Board considered 1 449 matters which is an 11.6% increase compared to the previous year (1,298 matters in the prior year). This increase in overall matters is largely a result of the increase in breach matters, and the increase in breach matters is a result of the increasing number of offenders subject to community corrections orders and the breach rate of these offenders.

The Board received 137 parole applications which is a decrease from the previous year of 5.5% (145 in the prior year). The percentage of these applications that were successful remains high (82.5%; 113) and the success level has risen significantly over the last three years (up from 69.3% successful in 2019-20). This improvement is largely due to the introduction of a therapeutic and problem-solving approach by the Board, and better supports and post-release services for parole applicants. However, it remains a concern that not all eligible detainees apply for parole.

The Board received a 100% increase (16) in applications, compared to the previous year (8), for re-instating ICOs that it had cancelled. This change is a result of the increase in ICOs being imposed by courts and also an increase in cancellations of ICOs by the Board. Like parole applications, the majority of applications for re-instatement of ICOs were successful (68.8%; 11), similar to the previous year. However, it remains a concern that it is not known if all eligible detainees apply for re-instatement of their ICOs.

The Board conducted 100 parole management hearings, which is when the Board reviews an offender’s progress on parole. This figure represents a 56.2% increase compared to the prior year (64 in the prior year). The majority of these matters resulted in adjustments to the conditions of the parole order or no further action, and 13% (13) resulted in a cancellation of parole, which is a similar pattern to the prior year.

Parole breach notifications significantly increased by 43.1% (229) compared to the prior year (160).

The majority of parole breach notifications resulted in a formal warning, no further action and/or a parole condition was varied (56.3%; 129) and therefore the offender was not required to return to prison, similar to the previous year. A significant percentage of parole breach notifications resulted in cancellation and the offender was therefore returned to prison (17%; 39), similar to the prior year.

ICO breach notifications significantly increased by 17.1% (130), compared to the prior year (111).

The majority of the ICO breach notifications resulted in a formal warning (54.6%;71), similar to the prior year.  A quarter of ICO breaches resulted in cancellation of the ICO (25.4%; 33) and 6.9% (9) resulted in either a three or seven day sanction in prison, similar to the prior year.

The Board issued a record number of arrest warrants in breach matters during the year. For some years now, the Board has had to conduct all its hearings by teleconference or Project Teams. In the case of a teleconferenced hearing, the Board must issue a warrant in every case where an offender’s order is cancelled or suspended, even if the offender participates in the teleconferenced hearing; previously Board hearings were always conducted in-person and therefore no warrant had to be issued because the offender was present and immediately placed in custody if their order was cancelled or suspended. The Board is concerned about the need to issue high numbers of warrants, and that offenders at risk of re-offending are in the community who otherwise should not be. This unsatisfactory situation is the consequence of two circumstances beyond the Board’s control. First, some years ago, the ACT Courts advised the Board that it cannot sit in the ACT Courts Complex, however the Board has no other venue that allows for safe in-person hearings. Secondly, since early 2020, the COVID-emergency has required the Board to limit in-person hearings.

There were 96 warrants issued for breach matters, an increase of 95.9% compared to the prior year (49 were issued in the prior year). Of these warrants, 51 (53.1%) were issued where an offender participated in the SAB hearing, but due to the hearing being teleconferenced a warrant was issued. The remainder of the warrants were issued due to the risk that the offender would re-offend, or an offender failed to appear at a SAB hearing. At 30 June 2021, 46 of the warrants issued during the year have not been able to be executed, so the offender remains at large in the community.  Of those warrants not executed, 9 are warrants for offenders who had their order cancelled or suspended in a teleconferenced hearing – this situation would be avoided if the Board could return to holding its hearings in-person once the Covid-emergency ends.

There were no periodic detention matters due to the repeal of related legislation and closure of the Symonston centre some years ago.

Board’s contribution to higher-level outcomes such as reducing recidivism

The Board currently relies on annual reporting by the Productivity Commission in its “Report on Government Services” (ROGS) to monitor its high-level performance and outcomes, in particular its contribution to reducing recidivism. Reducing recidivism is an indicator for correctional services used in that report and agreed by all governments in Australia. Recidivism refers to the proportion of prisoners who are returned to imprisonment or community corrections within two years. The Productivity Commission’s 2021 Report on Government Services (analysed data from 2019-20 and reported on recidivism (being returned to either prison or community corrections within two years of being released from prison or being discharged from a community corrections order) and also reported on completing a community corrections order. [18]

Community corrections is the element of ACT Corrective Services where the Board has its most influence on reducing recidivism. It refers to sentences served in the community, not a prison, such as court-ordered sanctions (for example in the ACT, an ICO) and post-prison orders (for example in the ACT, parole), that involve supervision, meeting requirements such as program participation and in some cases participation in community service[19]. In the ACT, community corrections supervises offenders in the community, who are subject to the Board’s supervisory functions, as well as those who are not for example offenders on good behaviour orders. The Productivity Commission reports on recidivism for all offenders on community corrections using data from 2019-20 which includes results for offenders subject to the Board’s supervisory powers.

The Productivity Commission also reports on ‘completion’ of community corrections orders, which is defined as “the percentage of community corrections orders completed in a year that were not breached for failure to meet the order requirements or because further offences were committed”[20].
The Productivity Commission recommends high or increasing percentages for order completion. It needs to be noted that if an order is not completed this situation does not mean the offender has committed a new offence. In the ACT, the Board can cancel a parole order or an ICO due to breaches of conditions that involve risky behaviour by an offender in the context of their offending history for example taking illicit substances, not attending such rehabilitation as a sex offender’s program, or residing in unapproved or unknown places (sometimes referred to as ‘technical breaches’).

The ROGS reported that there continues to be increasing use of community corrections as a sentencing option in the ACT. While the average number of prisoners/day decreased (412), the average number of community corrections participants/day increased (1235) similar to prior years.[21] As set out in more detail below, there continues to be a significant proportion of recidivists being returned to community corrections not prison.

In the ACT, 37.1% of prisoners released in 2017-18 had returned to prison with a new sentence within two years. While any recidivism is a concern, this level compares favourably with the Australian average of 46% and is the lowest level of recidivism for those returning to prison that the ACT has recorded in six years. Overall recidivism for those released from prison and who are returned to corrections, i.e. prison or community corrections is the lowest for two years (63.4%). But overall recidivism in the ACT is one of the highest in Australia and well above the national average (54.9%). Of most relevance to the Board is that this result shows that there is a significant proportion of recidivists who were released from prison being returned to community corrections, not prison. [22]

In the ACT, 20.8% of adults discharged after serving community corrections orders returned to corrections within two years, and most of those returned to community corrections, not prison. This level of community corrections recidivism is among the lowest in Australia, well below the national average (25.7%), and is the lowest level of recidivism for those discharged from a community corrections order that the ACT has recorded in two years. It is a level that is much lower than the overall recidivism for offenders released from prison who return to corrections within two years in the ACT as reported above (63.4%).[23]

In the ACT, the majority of community corrections orders were successfully completed (68.1%), but this is slightly lower than the national average (71.4%). Men and non-Indigenous offenders on community correction orders continued to show higher completion percentages than women and Indigenous offenders.[24]

In short, the results in the ACT for recidivism and completion of community corrections orders as reported by the Productivity Commission and summarised above are positive:

  • overall recidivism of those being released from prison is the lowest for two years,
  • recidivism for those discharged from a community corrections order is well below the national average and the lowest that the ACT has recorded in two years, and
  • a high percent of community corrections orders are completed even though the numbers of offenders sentenced to community corrections orders has increased.

These results suggest that there are many strengths to the corrective services system, including the community corrections system, in the ACT. They show that the numbers and proportion of sentenced persons including recidivists, who are subject to community corrections orders and not in prison, continues to grow. This situation indicates that the community corrections systems is increasingly critical to achieving outcomes in the corrective services context.  The results suggest that the community corrections system requires ongoing attention and increased support if positive outcomes are to be maintained and improved, and this includes effective support for Aboriginal and Torres Strait Islander persons, women and other disadvantaged groups who come before the Board.

Oversight of the Board, its decisions, and related processes

Board processes and decisions must comply with a comprehensive set of legal requirements and Board decisions are scrutinised by a range of independent bodies. The Board is one of the few parole bodies in Australia subject to human rights legislation and compliance with the principles of natural justice. Board decisions are reviewable by the ACT Supreme Court. Complaints about the Board’s work can be investigated by the ACT Ombudsman, and victims can make complaints to the Victims of Crime Commissioner. The ACT Integrity Commissioner has oversight of the Board and individual members.

In 2020-21, there were no new complaints about the Board. No decisions were reviewed by the Supreme Court. There was two freedom of information requests responded to.

An important review of parole processes was undertaken by the ACT Ombudsman’s Office. In late 2020 the Ombudsman’s Office published its Report on “Parole Processes at the Alexander Maconochie Centre”[25] in which is makes 15 recommendations - if implemented these will improve the parole process and outcomes. The ACT government agreed to all of the recommendations as set out in Attachment A of the report.  The Ombudsman’s Office recommendations focus on changes to improve case-management and support for detainees while in AMC, and when applying for parole. Also the recommendations focus on improving transparency of ACT CS polices and administration practices that relate to parole, and fine-tuning parole processes. Some of the recommendations are relevant to the discussions that are in progress to develop a Protocol between the SAB and the community corrections team, ACTCS.

Victims Involvement in Board proceedings

Legislation in the ACT aims to acknowledge, protect, and promote the interests of victims of crime in the administration of justice.  The Victims of Crimes Act 1994 contains principles and rights that govern the way that criminal justice agencies, including the Board, must engage with eligible victims. The ACT Charter of Rights for Victims of Crime commenced in 2021 following amendments to the latter Act, and it enhances victims’ rights and the Board’s responsibilities to eligible victims.[26]  The CSA Act also has important legislative provisions that offer support and a voice for eligible victims in certain Board proceedings.

Importantly, before the Board determines an offender’s suitability for release from custody, the Board will take all reasonable steps to seek the views of eligible victims about the possible release of the offender to parole, licence, or to reinstate an ICO. The Board can seek a victim’s views in other matters, e.g. where there has been a breach of an order, where it is practicable.

The purpose of a victim’s submission is to provide the victim’s views about issues relevant to the decision that the Board is making, and in particular to provide information about any concerns they or their family have about the need to be protected from violence or harassment if the offender be released. Note, any victim impact statements provided during the court proceedings that resulted in conviction of the offender are usually also available to the Board and on this basis a victim may decide it is not necessary to make a submission to the Board.

The Chair or Deputy Chairs may make a victim submission confidential in certain circumstances. For example, a victim’s submission can be made confidential if a judicial member of the Board considers it to be in the public interest or if there are safety concerns. A victim’s submission is usually in the form of a written submission; however, a victim can give oral evidence to the Board.

During the reporting period there were 13 written submissions by victims and 8 hearings were conducted to hear evidence from victims. There were 48 new victims who registered and there are now 166 registered victims who have actively notified the Board they wish to be involved in its proceedings. The Board will engage with unregistered eligible victims if practicable. There is expected to be a growth in victim’s submissions, oral and written, to the Board as the new ACT Victim’s Charter is further implemented.

The Victim Liaison Officer (VLO) position supports the Board engage with victims. This position will transfer to the Victims of Crime Commissioner’s office in 2021. The Board is working with the Victims of Crime Commissioner about this transfer of the VLO and implementing the Charter, and a Protocol will be developed to support this important relationship going forward.

The VLO can assist eligible victims register and also with the process of making a submission to the Board. At the time of writing, the contact details for the VLO are as follows:

Telephone: (02) 6207 0836
Email: victims.register@act.gov.au
Postal address: GPO Box 158, Canberra ACT 2601

Victim Support ACT can provide a range of support services to community members who are adversely affected by crime. This program includes help in relation to the making of a victim submission and support to a victim for a hearing with the Board. Information can be found at https://www.victimsupport.act.gov.au/home

Contact details for Victim Support ACT are as follows:

Phone: 1800 8222 72 or (02) 6205 2066
Email: human.rights@act.gov.au 

Location: Victim Support ACT is located on Level 1, 5 Constitution Avenue Canberra City, and the entrance is via the courtyard - the middle building.

Postal Address: Victim Support ACT, GPO Box 158, Canberra ACT 2601

 

[1] “Report on Government Services”, Part C: Justice: Corrective Services (2021) at https://www.pc.gov.au/research/ongoing/report-on-government-services/2021#:~:text=Report%20on%20Government%20Services%202021%20The%20annual%20Report,2%20February%202021.%20LATEST%20UPDATE%203%20JUNE%202021%3A

[2] ACT Ombudsman, “Parole processes at the Alexander Maconochie Centre: Investigation into the administration of parole by ACT CS”, Report No 05/2020 (November 2020)

[3] Sofronoff W QC (2016), “Queensland Parole System Review Final Report”, Government of Qld, p1, para 3

[4] Callinan I AC QC, “Review of the Parole System in Victoria”, 2013

[5] Sofronoff W QC (2016), “Queensland Parole System Review Final Report”, Government of Qld, p113, para 567

[6] ACT Auditor-General (2015), “Report on the Rehabilitation of Male Detainees at the Alexander Maconochie Centre,” Report No 2/ 2015, Appendix A

[7] Fitzgerald R et al (2016), “How does the Australian public view parole? Results from a national survey on public attitudes towards parole and re-entry”, (2016) 40 Crim LJ 307, p322

[8] Fitzgerald R et al (2016), “How does the Australian public view parole? Results from a national survey on public attitudes towards parole and re-entry”, (2016) 40 Crim LJ 307), p 323

[9] Callinan I, AC QC (2013), “Review of the Parole System in Victoria”, Government of Victoria

[10] Fitzgerald R et al (2016), “How does the Australian public view parole? Results from a national survey on public attitudes towards parole and re-entry”, (2016) 40 Crim LJ 307), pp 323-324

[11] Wan W, Poynton S, Van Doorn G and Weatherburn D, “Parole Supervision and Reoffending”, Trends and Issues in Crime and Criminal Justice No 485, 2014, p 6

[12] https://www.communityservices.act.gov.au/atsia/agreement-2019-2028

[13] https://justice.act.gov.au/sites/default/files/2020-08/Plan%20-%20RR25by25%20-%20Plan%20for%20printing%20-%20web-%20%20Final_0.PDF

[14] Michael S King (2009), “Solution-Focused Judging Bench Book”, Australasian Institute of Judicial Administration at https://aija.org.au/publications/solution-focused-judging-bench-book/ ; Susan Goldberg (2011), “Problem Solving in Canada’s Courtroom’s: A Guide to Therapeutic Jurisprudence”, Canadian National Judicial Institute at https://sasklawcourts.ca/images/documents/Provincial_Court/Problem-Solving%20in%20Canada's%20Courtrooms.pdf

[15] See https://treasury.gov.au/the-department/accountability-reporting/statements-of-expectations/statements-of-intent

[16] The Manual is available at https://coat.asn.au/about/practice-manual-for-tribunals/

[17] Victims Rights Legislation Amendment Act 2020

[18] ROGS data about the ACT should be interpreted with caution because the ACT has a small population and therefore small changes in numbers can significantly affect percentages and rates. Further, differences in jurisdictional practices and the profile of offender populations mean that comparisons with the states and the NT should be interpreted with caution.

[19] 8.3 Definitions of Key Terms, Corrective Services interpretative material, ROGS 2021

[20] Box 8.11, Completion of community orders, Corrective Services interpretative material, ROGS 2021

[21] ROGS 2021, Table 8A.15, Table 8A.4, Table 8A.8

[22] ROGS 2021, Table CA.4 and CA.5

[23] ROGS 2021,  Table CA.5

[24] ROGS 2021, Table 8A.21

[25] ACT Ombudsman, “Parole processes at the Alexander Maconochie Centre: Investigation into the administration of parole by ACT CS”, Report No 05/2020 (November 2020)

[26] Victims Rights Legislation Amendment Act 2020