The NSW Government is taking action to respond to the public health emergency caused by COVID-19.
An important part of that work is making temporary changes to ensure that government functions and services can be delivered in line with current advice about reducing the potential for the transmission of COVID-19. These changes are legislated for six months, and can be extended for a maximum of a further six months by regulation.
This factsheet explains some changes that the government has made to enable courts, tribunals, correctional centres, and youth justice centres in NSW to continue their essential work, while keeping staff, clients and the rest of the community safe.
Changes we have made to date
Changes to the conduct of criminal proceedings and related issues will mean that:
- more trials can be heard by a judge alone, where an accused person consents
- the Sheriff can exempt persons from selection to be summoned as jurors where there is good cause
- certain witnesses in criminal proceedings can have their evidence pre-recorded before the trial
- evidence given by witnesses in criminal proceedings may be recorded and replayed in front of the judge, and jury, in subsequent trial proceedings
- bail appearances from police stations and detention facilities will be conducted by audio visual link (AVL), where possible
- courts can use AVL in trials and fitness hearings, where appropriate
- courts can direct witnesses and legal representatives, including prosecutors, to appear via AVL
- police-issued provisional Apprehended Domestic or Personal Violence Orders will remain in force for up to six months, if they cannot be listed in the usual timeframe.
Changes to the management of correctional and youth justice centres will mean that:
- entry into adult correctional facilities and youth justice detention centres can be better controlled during a public health emergency, including preventing visits to inmates and detainees. The power can limit physical visits, and will not impact communication that can be conducted through other means. Further, the existing visiting arrangements in relation to the Inspector of Custodial Services and the Ombudsman will not be changed.
Changes to the NSW Civil and Administrative Tribunal (NCAT) will mean that:
- the Guardianship Division of NCAT can be constituted by two members instead of three
- the Guardianship Division of NCAT must provide a statement of reasons for decisions but can provide oral reasons (within 30 days) instead of written reasons
- the Administrative and Equal Opportunity Division of NCAT can be constituted by two members instead of three in matters relating to the Public Health Act 2010
- NCAT (excluding the Guardianship Division) now has 90 days to provide written reasons, where requested by a party
- NCAT can extend the time for a party to lodge an application, appeal, or review of a decision where the party is unable to lodge the application in time because of exceptional circumstances stemming from COVID-19
- courts can also extend the time limits for review of or appeal from NCAT decisions because of exceptional circumstances stemming from COVID-19
- the Governor can make Regulations that extend any time limit or otherwise alter procedures in relation to NCAT.
The changes will cease in six months
The majority of the above changes will cease to have effect in six months’ time, unless the Governor extends them.
This reflects the urgent, but temporary, need for these measures to respond to the ongoing public health emergency.
Power to take more steps if needed
Conditional release power
The NSW Government has empowered the Governor to make regulations determining classes of inmates for potential early parole.
The changes allow the Commissioner of Corrective Services to grant early parole to inmates within a class identified in the regulations, including prior to the expiry of their non-parole period. Certain inmates, including those serving a life sentence or a sentence of imprisonment for murder, any serious sex offence or offence of a sexual nature under the Crimes (High Risk Offenders) Act 2006, a terrorism offence or a serious offender under the Crimes (Administration of Sentences) Act 1999, will not be eligible to be released.
Prior to making any decisions about early parole, the Commissioner would need to consider potential risks to community safety and the impact it would have on any victim whose name is recorded in the Victims Register in relation to the inmate.
In the case of an inmate who has previously been convicted of a domestic violence offence, the Commissioner must consider “the protection of the victim of the domestic violence offence and any person with whom the inmate is likely to reside if released”.
If regulations are made, early parole would be subject to the standard conditions of parole and any other conditions the Commissioner considers appropriate such as home detention or electronic monitoring.
The Crimes (Administration of Sentences) Act 1999 already includes a victims’ register which enables victims to choose whether they wish to be contacted about decisions relating to an inmate, including parole.
Victims that have added their names to the Victims Register will be notified if the perpetrator of a crime against them is released on early parole.
Any inmate who is conditionally released would be supervised by Community Corrections under the existing parole framework, which prioritises community safety. The Commissioner would have the power to return an early parolee to custody at any time for any reason.
These regulation making powers are in place in case they are needed to ensure correctional centres can be managed safely and effectively, particularly if the risk of the widespread transmission of COVID-19 within the system increases.
Regulation making power
The changes also introduce a power to make further changes by regulation to alter existing arrangements to align with updated health advice, in circumstances where Parliament is not able to legislate those changes. This power will only be used in exceptional circumstances.
Whole of government approach Key government agencies will work together to implement the measures outlined in this factsheet. This action complements the work being led by NSW Health and other government agencies.
For more information on these changes
Contact the Department of Communities and Justice at firstname.lastname@example.org.
For more information on COVID-19 Visit the NSW Health website at www.health.nsw.gov.au