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Corrective Services Amendment Bill (No. 2) 2001
CORRECTIVE SERVICES AMENDMENT
BILL (No. 2) 2001
EXPLANATORY NOTES
GENERAL OUTLINE
Policy objectives of the Bill
The purpose of Corrective Services is community safety and crime
prevention through humane containment, supervision and rehabilitation of
offenders.
Under administrative arrangements made under the now repealed
Corrective Services Act 1988, it was generally possible for many prisoners
to be eligible for release to the community under release to work or home
detention orders up to ten months or four months (respectively) before their
earliest parole eligibility.
With the enactment of the Corrective Services Act 2000 (which
commenced on 1 July 2001) it was intended that most prisoners could not
be eligible for post-prison community based release (including release to
work or home detention) until their parole eligibility date. However, in
Tyler v Tullipan and Ors [2001] QSC, a decision of the Supreme Court
delivered on 10 October 2001, Her Honour, Justice Atkinson held:
It seems reasonably clear that prior to 30 June 2001 the applicant had
a right or at least a privilege under the 1988 Act and the guidelines
issued under that Act to have his application for home detention
considered and determined and that the date on which he became
eligible for home detention was 25 July 2001. The right or privilege
arises from the sentence imposed by the court, the effect of the
legislation and guidelines and the information given to him by the
fourth respondent. It was more than a mere hope or a power to take
advantage of an enactment. The applicant argues that he retains that
right or privilege not withstanding the passage of the 2000 Act. (From
paragraph 18)
While he did not have an unconditional right to home detention he
had the right to have his application for home detention considered
and determined in accordance with his eligibility date. No section of
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Corrective Services Amendment Bill (No. 2) 2001
the 2000 Act explicitly took that right away from him. (From
paragraph 33)
If such a right or privilege exists as was found in this decision, it is the
intention of this Bill to extinguish such rights, privileges or expectations to
ensure that the Government's intention of establishing a consistent scheme
of post-prison based community release is achieved.
This Bill also seeks to simplify the prosecution of offenders who are
found to have been unlawfully at large.
How will policy objectives be achieved by the Bill?
The Bill will set out the transitional provisions that will apply
specifically to post-prison community based release orders or orders in the
nature of post-prison community based release orders, in detail. The Bill
will make clear the status of administrative arrangements and decisions
made before 1 July 2001.
In respect of prosecuting prisoners "unlawfully at large" the Bill will
insert a new offence clause into section 94 of the Corrective Services Act
2000.
Administrative cost to Government
There is no increased cost to Government in implementing this Bill.
Fundamental legislative principles
The Legislative Standards Act 1992 requires that legislation has
sufficient regard to the rights and liberties of individuals. Relevantly,
whether legislation has sufficient regard to the rights and liberties of
individuals may depend on whether, for example, the legislation adversely
affects rights and liberties, or imposes obligations, retrospectively. It is
acknowledged that one consequence of creating the scheme of post-prison
community based release in Chapter 5 of the Corrective Services Act 2000
is its impact on prior prisoner expectations for eligibility under previous
administrative arrangements (including eligibility criteria under Ministerial
guidelines).
If a right or privilege to an earlier eligibility date under a previous
administrative arrangement exists, then the argument for the preservation
of these must be balanced against the desirability of having a consistent
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Corrective Services Amendment Bill (No. 2) 2001
scheme of post-prison community based release and the benefit to
community safety achieved by prisoners serving the pre-parole period of
their sentence in custody.
Consultation
Consultation regarding post-prison community based release occurred in
relation to the Corrective Services Bill 2000. It is not considered
appropriate to have renewed consultation in relation to this amendment.
The amendment only seeks to clarify the intended operation of the scheme.
The purpose and intended operation of each clause involved
Clause 1 sets out the short title of the Act.
Clause 2 provides that section 5, to the extent that it inserts a new section
268A is taken to have commenced on 1 July 2001.
Clause 3 provides that this Act amends the Corrective Services Act 2000.
Clause 4 amends section 94 by inserting a sub-section (j). A prisoner
must not without reasonable excuse be unlawfully at large or the prisoner
will be liable to a maximum penalty of two years imprisonment for the
offence. The term "unlawfully at large" is defined in Schedule 3 of the
Corrective Services Act 2000.
Clause 5 inserts new sections 268A and 268B. Given the level of detail,
and explanations in the proposed sections, it is not proposed to explain
them further in these notes.
Clause 6 amends the definition of "unlawfully at large" under Schedule
3 of the Corrective Services Act 2000.
This amendment will extend the offence of unlawfully at large to
situations where a prisoner, released to the community under certain orders
remains at large in the community after the order has expired. The prisoner
can be prosecuted for being unlawfully at large.
Example. A prisoner is granted leave of absence for educational
purposes under section 58(1)(c) of the Corrective Services Act 2000.
The leave of absence order is granted for a period of six hours to
enable a prisoner to attend a course. At the end of the last hour of the
order's operation, the prisoner fails to return to the corrective
services facility. The prisoner may be prosecuted for being unlawfully
at large.
� State of Queensland 2001