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SENTENCING (AMENDMENT) BILL 1993 (No. 2)
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
This Bill is cognate with the Prisons (Amendment) Bill 1993 (No. 2).
The objects of this Bill are to amend the Sentencing Act 1989:
(a) to transfer to the Offenders Review Board ("the Board") the functions of the
Serious Offenders Review Board in relation to the variation and revocation of
existing licences to be at large. The Serious Offenders Review Board is at
present constituted under the Prisons Act 1952 but is proposed to be abolished
by the Prisons (Amendment) Act 1993; and
(b) to validate certain action taken in respect of existing and former licences in the
manner described below.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides that the proposed Act commences on a day or days to be
appointed by proclamation.
Clause 3 gives effect to the Schedule of amendments to the Sentencing Act 1989.
SCHEDULE l--AMENDMENTS
Transfer of functions
Schedule 1 (1) inserts new definitions of "existing licence", "licensee", "Review
Council" and. "serious offender" in section 4 (1).
Schedule 1 (2) replaces a reference in section 13A (9) to the Serious Offenders
Review Board with a reference to the Serious Offenders Review Council (which is
proposed to be constituted under the Prisons (Amendment) Bill 1993). Section 13A (9)
requires the Supreme Court to have regard to certain reports when setting minimum and
additional terms for offenders serving existing life sentences.
Schedule 1 (3) amends section 18 to ensure that the Board may defer making a
decision about the release of a prisoner on parole to a day within 60 days (but not less
than 21 days) before the prisoner becomes eligible for parole if there are outstanding
reports and matters requiring further consideration by the Board.
Schedule 1 (4) makes an amendment to section 19 which is consequential to the
amendment to section 18.
Schedule 1 (5) inserts section 19A to require the Board to give reasons for rejecting
advice from the Review Council concerning the release of a serious offender. The
Review Council is also given the right to make submissions to the Board within a
specified period in relation to any such rejection.
Schedule 1 (6) makes an amendment to section 36 by way of statute law revision to
replace an outdated reference to "Substitute Chairperson" of the Board with "Alternate
Chairperson".
Schedule 1 (7) amends section 50 to require the Board to report to the Minister on
the number of existing licences it has revoked or varied.
Schedule 1 (8) amends section 51 to enable certain persons to have access to, and
obtain information about, licensees or former licensees who have been returned to
prison.
Schedule 1 (9) (a) replaces clause 11A of Schedule 1 of the principal Act with a
provision to enable a member of the Review Council to attend a meeting of the Board.
Schedule 1 (9) (b) enables the Chairperson of the Board to nominate a judicial
member to preside at a meeting of the Board.
Schedule 1 (9) (c) confers the casting vote on the judicial member presiding at a
meeting of the Board where there is a tied vote.
Schedule 1 (10) inserts provisions of a savings and transitional nature conferring
certain powers on the Board concerning the revocation or variation of existing licences
that are closely modelled on the Board's existing powers under Part 3 of the Act in
relation to parole orders.
Validation
Schedule 1 (10) also inserts a provision in Schedule 2 (proposed clause 27) to
validate the granting, variation or revocation of licences by the Governor on the advice
of a Minister alone before the repeal of section 463 of the Crimes Act 1900. In Roberts
v. Governor of N.S.W., (Supreme Court, 30 July and 26 November 1992, unreported),
Grove J. held that the Governor acting under section 463 could only act on the advice of
the Executive Council and not on the advice of a Minister alone.