The Three-Year Threshold: Will You Actually Walk Free on Your Parole Date?

For many individuals serving a term of imprisonment, the “Non-Parole Period” (NPP) is the most important date on the calendar. It represents the first glimmer of light at the end of the tunnel, the earliest possible day they can return to their families and communities.

However, a common and heartbreaking misconception is that release is always automatic. In reality, the law creates a sharp divide: if your sentence is more than three years, your release is a “maybe,” not a “must.”

Whether you are dealing with New South Wales (NSW) state law or Federal (Commonwealth) law, the three-year mark changes everything. At National Criminal Lawyers, we often meet families who are shocked to learn that their loved one’s release has been delayed or refused, even after a “clean” record in custody.

So, how does the process actually work? And why does that three-year mark matter so much?

The NSW System: Statutory vs. Discretionary Parole

In NSW, the rules for release are found in the Crimes (Administration of Sentences) Act 1999 (NSW). The system splits offenders into two categories based on the length of their total sentence.

1. Sentences of 3 Years or Less: “Statutory Parole“

If a court imposes a total sentence of three years or less, the law generally requires that the offender be released “as of right” once the non-parole period ends. This is known as Statutory Parole (pursuant to Section 158 of the Act).

Unless the State Parole Authority (SPA) has a specific reason to revoke the order before the release date (such as a serious fresh offence committed while in custody), the inmate will walk out of the gates on their eligibility date.

2. Sentences of More Than 3 Years: The SPA Gauntlet

If the total sentence is even one day over three years, the “automatic” nature of parole vanishes. Instead, the decision is handed over to the NSW State Parole Authority (SPA).

For these sentences, the SPA must apply the “Public Interest Test” under Section 135 of the Act. The Authority cannot release an offender unless it is satisfied, on the balance of probabilities, that the release is in the interest of community safety.

The test has clear parallels to the chief consideration applied by the courts in deciding whether to grant an Intensive Corrections Order as an alternative to full-time custody.

They will consider:

• The sentencing remarks of the original Judge.
• The offender’s criminal history and behaviour in prison.
• Reports from Community Corrections (the “Pre-Release Report”).
• Whether the offender has completed required programs (e.g., drug and alcohol or violence prevention).
• The impact on any victims.

Have you or a loved one been told you “haven’t done enough programs” despite them not being available in your centre? This is a common hurdle we help clients overcome.

The Commonwealth (Federal) System: The Attorney-General’s Discretion

If you have been convicted of a federal crime (such as certain drug importations, tax fraud, or online offences), the rules shift to the Crimes Act 1914 (Cth).

The Commonwealth parole does not involve the SPA. Instead, the decision rests with the Federal Attorney-General (or their delegates within the Department).

Under 3 Years: Under Section 19AL(1), the Attorney-General must make a parole order for sentences of 3 years or less.

Over 3 Years: Under Section 19AL(2), if the sentence exceeds 3 years, the Attorney-General may make a parole order.

This “may” is the crucial word. It means the federal government has broad discretion to refuse parole if they believe the risk is too high. Unlike the NSW state system, there is no public hearing for Commonwealth parole; it is a “paper-based” system where written submissions are your only voice.

Comparing the Process: Why CTH is Often Harder

The most striking difference between NSW State parole and Commonwealth parole for sentences over three years is the right to be heard.

• NSW (The Public Hearing): In the NSW state system, if the SPA intends to refuse your parole, they must give you the opportunity for a Public Hearing. At this hearing, you can be legally represented, call witnesses, and cross-examine the evidence against you. This provides a layer of transparency and accountability. For instance, Parole Determinations are published online by the NSW State Parole Authority.
• Commonwealth (The Paper-Based System): The federal system is almost entirely “on the papers“. There are no public hearings. If the Commonwealth Parole Office is considering refusing your parole, they will send you a “Notice of Likely Refusal“ (also known as an Adverse Comments Letter). You are often given a very short window, sometimes just a few days, to write a response. If that written response fails to persuade them, parole is refused without you ever stepping foot in a courtroom.

How National Criminal Lawyers® Can Assist

The difference between being released on your eligibility date or spending another 12 months in a cell before your next opportunity for release, often comes down to the quality of the material presented to the deciding body.

For sentences over three years, the SPA or the Commonwealth Parole Office will look for reason for and against and give very careful consideration to not releasing an individual, if “they feel” community safety is at risk.

Our team at assists by:

Drafting Persuasive Submissions: We don’t just say you’re a good person. We point to the law and evidence of rehabilitation to show that the “Public Interest Test” is met.

Gathering Evidence: We help families organise stable accommodation plans and post-release employment, which are critical for a successful parole application.

Representing at SPA Hearings: If the SPA intends to refuse parole, they will often list the matter for a “Public Hearing“. We provide expert advocacy at these hearings to challenge negative reports from Corrective Services.

Managing the “Manifest Injustice” Application: If parole is refused, you usually have to wait 12 months for a review. However, we can apply for an earlier review if we can prove that waiting would result in a “manifest injustice“.

Discussion: Is the System Fair?

The three-year rule is designed to ensure that those who commit more serious crimes are scrutinised more heavily before they return home. However, many argue that this creates a “shadow sentence” where people are kept in prison not for what they did, but because of a lack of resources (like waiting lists for programs), or due to third-parties such as Community Corrections failing to prepare reports which appropriately capture the merits for release, whilst paying inappropriate attention to irrelevant reasons against release.

What do you think? Should everyone have a right to be released on their parole date if they haven’t caused trouble inside, or is the “Public Interest Test” a necessary safeguard?

If you or a loved one is approaching the end of a non-parole period and you are concerned about the release process, do not leave it to chance. Contact our experienced criminal law team today for a consultation 1800-CRIM-LAW.