Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Serious Offenders Bill 2018
Introduction Print
EXPLANATORY MEMORANDUM
The Serious Offenders Bill 2018 establishes a civil, protective scheme
under which offenders who have served custodial sentences for certain
serious sex offences and certain serious violence offences and who present
an unacceptable risk of harm to the community can be made subject to
ongoing detention or supervision.
The Bill repeals the Serious Sex Offenders (Detention and Supervision)
Act 2009, which contains a scheme for the ongoing detention or supervision
of offenders who have served custodial sentences for certain serious sex
offences and who present an unacceptable risk of harm to the community.
The Bill expands the post-sentence scheme under the superseded Act in order
to protect the community from serious interpersonal harm (whether violent or
sexual), and significantly improve the way in which post-sentence offenders
are identified, managed and treated.
The Bill gives effect to the recommendations of the Review of Complex Adult
Victim Sex Offender Management (referred to as the "Harper Review" in this
explanatory memorandum) on how to improve the legislative framework,
operational decision making and case management between the criminal
justice and mental health service systems in relation to complex adult victim
sex offenders.
The Bill includes the following substantive changes from the Serious Sex
Offenders (Detention and Supervision) Act 2009--
• Expands eligibility for the post-sentence scheme to offenders
who have been convicted and sentenced for certain serious
violence offences in a higher court;
• Introduces new requirements for core conditions on orders
made by a Court under the Bill, and powers for the Courts to
prohibit the possession or use of firearms;
581438 1 BILL LA INTRODUCTION 8/5/2018
• Creates new Emergency Detention Orders to provide for an
additional mechanism for managing a supervision order
offender's escalating and imminent risks;
• Establishes a new secure residential treatment facility to
provide intensive treatment and supervision to offenders that
are an unacceptable risk of reoffending.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill, which are--
• primarily, to provide for enhanced protection of the
community by requiring offenders who have served
custodial sentences for certain serious sex offences or
certain serious violence offences and who present an
unacceptable risk of harm to the community to be
subject to ongoing detention or supervision; and
• secondly, to facilitate the treatment and rehabilitation of
those offenders; and
• to repeal the Serious Sex Offenders (Detention and
Supervision) Act 2009 and consequentially amend
other Acts.
Clause 2 provides for the commencement of the Bill. The Bill comes into
operation on a day or days to be proclaimed or, if not proclaimed,
on 25 March 2019.
Clause 3 defines various words and expressions used in the Bill.
A number of definitions refer to the clause in the Bill in which
the definition is explained.
Clause 4 provides that for the purposes of the Bill, an offender is taken
to be serving a custodial sentence even if the offender has been
released on parole under the Corrections Act 1986 in respect of
that sentence.
The purpose of this clause is to ensure that an order under this
Bill commences at the conclusion of the parole period, if any.
2
Clause 5 provides that in making any decision under this Bill, a person
or body must give paramount consideration to the safety and
protection of the community.
This paramount consideration applies to a range of decisions
and decision-makers under the Bill, including the Courts, the
Secretary of the Department of Justice and Regulation
(referred to as "the Secretary" in this explanatory memorandum),
the Post Sentence Authority (referred to as "the Authority" in
this explanatory memorandum), and the Director of Public
Prosecutions (referred to as "the DPP" in this explanatory
memorandum). For example, this clause applies to the Supreme
Court in deciding whether or not to make an emergency detention
order under clause 78.
Clause 6 provides that a proceeding under the Bill in a court is civil in
nature, unless otherwise provided by the Bill.
Clause 6(2) provides that although such a proceeding is civil in
nature, it is not a civil proceeding to which the rules regulating
the practice and procedure of a court in a civil proceeding apply.
Civil proceedings under the Bill are instead regulated by the rules
of practice and procedure specified in the Bill.
Clause 7 clarifies that it is intended that a supervision order or an interim
supervision order operates to the extent that it can validly do so,
in the event the substantive changes made by the Bill are subject
to a legal challenge.
Part 2--Assessment of eligible offenders
Clause 8 defines who is an eligible offender. An order under Parts 3 to 6
of the Bill for a supervision order, interim supervision order,
detention order or interim detention order may only be made in
respect of an eligible offender.
Clause 8(1) provides that an eligible offender is a person over
the age of 18 years who has been sentenced to a custodial
sentence for a serious sex offence or a serious violence offence
by the Supreme Court or the County Court, whether at first
instance or on appeal from those courts, (or an equivalent court
of another State or Territory) at any time. Offences that qualify
as a serious sex offence or a serious violence offence are set out
in Schedule 1 and Schedule 2 of the Bill, respectively.
3
An offender will only be an eligible offender under clause 8(1)
if the offender is serving in Victoria--
• the custodial sentence referred to in clause 8(1)(a),
whether or not the sentence is being served concurrently
with or cumulatively on a custodial sentence for another
offence;
• a custodial sentence for another offence, that is being
served cumulatively on the custodial sentence referred
to in clause 8(1)(a) that has been served, irrespective of
when the sentence was imposed; or
• a custodial sentence for another offence, that is being
served cumulatively on the custodial sentence referred
to in clause 8(1)(b)(ii) that has been served, irrespective
of when the sentence was imposed.
Clause 8(2) provides that a person is also an eligible offender
if the person is remanded in custody or is serving a custodial
sentence for any offence, and, at the time the person was
remanded in custody or began to serve that custodial sentence,
they were the subject of an application for a supervision order, a
detention order, or an emergency detention order, or were subject
to a supervision order, an interim supervision order, a detention
order, or an interim detention order or emergency detention
order.
Clause 8(3) provides that a person is also an eligible offender
if the person is subject to a supervision order, an interim
supervision order, an emergency detention order, a detention
order or an interim detention order, whether or not the person is
remanded in custody or is serving a custodial sentence.
Clause 8(4) provides a person is not an eligible offender if, on
appeal, the conviction or finding of guilt in respect of the serious
sex offence or serious violence offence by reason of which the
person is an eligible offender is set aside, or, the custodial
sentence is varied and a different sentence is imposed such that
the person is not an eligible offender.
Clause 8 is based on section 4 of the Serious Sex Offenders
(Detention and Supervision) Act 2009, but is different to that
section in two key respects.
4
First, clause 8 limits the definition of eligible offender to an
offender upon whom a custodial sentence has been imposed by
the Supreme Court or the County Court. Under the Serious Sex
Offenders (Detention and Supervision) Act 2009, the relevant
custodial sentence could be imposed by any court, including the
Magistrates' Court. This change reflects the fact that the court in
which a person is sentenced generally reflects the gravity of the
offending.
Second, clause 8 provides that a person will be an eligible
offender where they have been sentenced for either a serious sex
offence or a serious violence offence. Under the Serious Sex
Offenders (Detention and Supervision) Act 2009, an eligible
offender was required to have been subject to a custodial
sentence for a specified sexual offence (the definition of relevant
offence in that Act being limited to such sexual offences).
This change reflects the recommendation of the Harper Review.
The Harper Review noted that Victoria's post-sentence
supervision and detention scheme should operate to protect the
community from acts of serious interpersonal harm, regardless of
whether the offending behaviour is sexual or violent, or both.
It recommended that eligibility for the scheme should be
broadened to also include serious violent offenders.
This is because of the close association between serious sexual
offending and serious violent offending and the artificiality of
separating these kinds of offending when making predictions
about future behaviour and reflects the fact that some offenders
pose a risk in engaging in either or both sexual and violent
conduct.
Accordingly, it is intended that the Bill be given valid operation
to its fullest extent, including that a person convicted of a serious
sexual offence is to be made the subject of an order for future risk
of violent offending and likewise for serious violent offenders
who are at risk of sexual offending.
Clause 9 provides the Secretary with the discretion to make an application
for a supervision order.
Clause 9(1) provides that the Secretary may decide to apply for
a supervision order under clause 13 in respect of an eligible
offender.
5
Clause 9(2) provides that if the Secretary considers that an
application for a detention order should be made, the Secretary
must refer to the DPP the question of whether or not to apply for
a detention order. Part 5 of the Bill deals with detention orders.
In considering whether an application for a detention order
should be made, the Secretary should have regard to the criteria
for making a detention order as outlined in that Part, together
with the purposes of the Bill.
Clause 9(3) provides the Secretary must have regard to an
assessment report (the contents of which are set out in clause
269) in respect of an eligible offender, and may have regard
to any other report, information or matter that the Secretary
considers relevant for the purposes of applying for a supervision
order under clause 9(1)(a) and a referring the question of whether
or not to apply for a detention order to the DPP under clause 9(2).
Part 18 of the Bill sets out the process and requirements for
obtaining an assessment report.
Clause 9(4) provides that the Secretary may have regard to an
assessment report in respect of an eligible offender and any other
report, information or matter that the Secretary considers relevant
for the purposes of deciding not to proceed with applying for a
supervision order in respect of an eligible offender. This clause
confirms that it is not necessary for the Secretary to obtain a
statutory assessment report for the purposes of deciding not to
proceed with applying for a supervision order in respect of an
eligible offender.
Clause 9(5) requires the Secretary, if the Secretary refers to the
DPP the question of whether or not to apply for a detention order,
to provide to the DPP a copy of the assessment report to which
the Secretary had regard and any other report or information
requested by the DPP.
Clause 9(6) makes clear that the Secretary is not obliged to apply
for a supervision order in respect of an eligible offender.
Clause 10 sets out what the DPP is required to do in response to a referral
by the Secretary under clause 9.
Clause 10(1) provides that upon such a referral, the DPP must
decide whether or not to apply for a detention order in respect of
an eligible offender.
6
Clause 10(2) requires the DPP to have regard to an assessment
report in respect of an eligible offender, and allows the DPP to
have regard to any other report, information or matter that the
DPP considers relevant in making this decision.
Clause 10(3) makes clear that the DPP is not obliged to apply for
a detention order in respect of an eligible offender.
Clause 10(4) provides that if the DPP decides not to apply for a
detention order, he or she may refer the matter back to the
Secretary.
Clause 11 provides that if the DPP decides not to apply for a detention
order, the Secretary has discretion to make an application for a
supervision order in respect of the eligible offender.
Part 3--Supervision orders
Division 1--Court in which to commence application
Clause 12 outlines in which court an application for a supervision order is to
commence.
Clause 12(1) provides that unless the context otherwise requires,
an application for a supervision order is to be commenced in the
Supreme Court or the County Court, being the court referred to in
clause 8(1)(a) that sentenced the offender to the custodial
sentence.
Clause 12(2) provides that where an eligible offender was
sentenced by an equivalent court of another State or a Territory,
an application for a supervision order is to be commenced in the
Supreme Court or the County Court, being the equivalent court to
the court that sentenced the offender.
Clause 12(3) provides that where a custodial sentence is imposed
on an offender on appeal, an application for a supervision order is
to be commenced in the court from which the appeal was
brought.
Clause 12(4) provides that if an offender is subject to a
detention order or an interim detention order, an application for
a supervision order is to be commenced in either the court that
sentenced the offender to the custodial sentence by reason of
which the offender is an eligible offender, or the Supreme Court.
7
Division 2--Making of supervision order
Clause 13 sets out how the Secretary may apply for a supervision order.
Clause 13(1) provides that the Secretary may apply to the court
referred to in clause 12 for a supervision order in respect of a
person who is an eligible offender at the time when the
application is commenced.
Clause 13(2) details the documents that must be filed by the
Secretary, being a notice of application in accordance with any
rules of court if any, at least one assessment report in respect of
the eligible offender and, if the Secretary intends to request the
imposition of an intensive treatment and supervision condition
under clause 32, a treatment and supervision plan.
Clause 13(3) sets out the materials that the Secretary must serve
on the eligible offender and provides that those materials must be
served as soon as practicable after the application for the
supervision order is commenced.
Clause 13(4) requires an application for a supervision order to
be discontinued if the offender ceases to be an eligible offender
because the offender's conviction or finding of guilt in respect
of the serious sex offence or serious violence offence, by reason
of which the person is an eligible offender, is set aside, or the
custodial sentence is varied and a different sentence is imposed
such that the person is not an eligible offender.
Clause 14 deals with the determination of an application for a supervision
order.
Clause 14(1) details the matters of which the court must be
satisfied in order to make a supervision order. Subclause (1)
provides that the court may only make a supervision order in
respect of an eligible offender if it is satisfied that the offender
poses, or after release from custody will pose, an unacceptable
risk of committing a serious sex offence or a serious violence
offence or both if a supervision order is not made and the
offender is in the community.
Clause 14(1) is based on the test in section 9(1)(a) of the Serious
Sex Offenders (Detention and Supervision) Act 2009 and
maintains the reference to the offender posing an "unacceptable
risk" (see, e.g. Nigro v Secretary to the Department of Justice
(2013) 41 VR 359). Maintaining a focus on "unacceptable risk"
8
is consistent with the protective and non-punitive purposes of
making a supervision order. The Harper Review recommended
that this test be retained.
The criteria for making a supervision order now reflects the
expansion of the post-sentence supervision and detention
scheme--as recommended by the Harper Review--to also cover
offenders who have committed serious violence offences.
Clause 14(1) allows a court to impose a supervision order on
an offender even if they pose an unacceptable risk of committing
an offence of a different type to that for which the custodial
sentence, by reason of which the offender is an eligible offender,
was imposed.
For example, an offender who is an eligible offender by reason of
having committed a serious violence offence can be made subject
to a supervision order if the offender poses an unacceptable risk
of committing a serious sex offence. This reflects the findings of
the Harper Review that some offenders have an interconnected
history of both sex and violent offending, and may pose a risk of
further offending that is of a different type to the offence for
which they were initially sentenced.
Like section 9(1) of the Serious Sex Offenders (Detention
and Supervision) Act 2009, as amended by the Corrections
Legislation Miscellaneous Amendment Act 2017, clause 14(1)
clarifies that the court may make a supervision order despite the
offender serving a custodial sentence or being on remand, where
the offender will pose an unacceptable risk on release from
custody. This addresses the issues arising from the case of
DPP v AJP [No 2] (2016) VSC 198.
Clause 14(2) provides that in determining whether an offender
poses, or will pose, an unacceptable risk, a court must have
regard to any assessment report or progress report filed in
relation to the application (subject to clause 273 which sets out
the requirements for managing disputed reports); any other report
filed, tendered or made, or evidence given, in relation to the
application; and any other matter the court considers appropriate.
In determining whether an offender poses, or will pose, an
unacceptable risk, the court must not have regard to the means
of managing the risk by way of conditions that may be imposed
under the order or the likely impact of a supervision order on the
offender. These issues are to be addressed when the court
9
determines whether to make the supervision order under
subclause (6), and in its consideration of the appropriate
discretionary conditions to be imposed on the order
(clause 27(4)).
Clause 14(3) provides that the court must be satisfied, by
acceptable, cogent evidence, to a high degree of probability,
that the offender poses, or will pose, an unacceptable risk.
Clause 14(4) provides that the court may determine that an
offender poses, or will pose, an unacceptable risk under this
clause even if the likelihood that the offender will commit a
serious sex offence, a serious violence offence or both is less
than more likely than not. The risk that an offender poses of
committing a serious sex offence, a serious violence offence or
both may nonetheless be unacceptable having regard to matters
such as the likelihood of the occurrence of risk and the
seriousness of the consequences if the risk eventuates.
Clause 14(5) places the burden of proof on the Secretary of
establishing that an offender poses or will pose an unacceptable
risk.
Clause 14(6) clarifies that a court, if satisfied as required
under subclause (1), may make a supervision order or no order.
This clarifies that the making of a supervision order is a
discretionary power, and the court is not obliged to make an
order even if the criteria for the making of an order is satisfied.
Clause 14(7) and (8) clarify that a court can continue to hear and
determine an application for a supervision order even if during
the proceeding, the offender has ceased to be an eligible offender,
because the custodial sentence has been served or has expired, or
the offender is no longer subject to a detention order, or the
offender is remanded in custody or is serving a custodial
sentence.
Clause 15 provides that a supervision order is to be subject to the core
conditions set out in clause 31, and any other conditions that the
court imposes under Division 3.
Clause 16 sets out the content of a supervision order.
Clause 16(1) requires the supervision order to state that the
court is satisfied that the offender poses an unacceptable risk of
committing a serious sex offence, a serious violence offence or
10
both if a supervision order is not made and the offender is in the
community.
Clause 16(2) lists a number of other matters that the supervision
order must specify, such as the name of the offender, the
conditions of the order and the period of the order.
Clause 16(3) requires the supervision order to be signed by the
judge constituting the court that made it and include the name of
the judge.
Clause 17 requires the Secretary to give a copy of the order to the Authority
and, in some circumstances, the Adult Parole Board.
Clause 17(1) provides that as soon as practicable after the making
of a supervision order, the Secretary must give a copy of the
order to the Authority and, if the offender is serving a custodial
sentence when the order is made, the Adult Parole Board.
Clause 17(2) requires the Secretary to give a copy of the order to
the Adult Parole Board, as soon as practicable, if the offender
commences serving a custodial sentence before the expiry or
revocation of the supervision order.
Clause 18 specifies when a supervision order commences.
Clause 18(1) provides that, subject to subclause (2), a supervision
order commences--
• if the offender is serving a custodial sentence when
the supervision order is made, on the day the offender
completes the custodial sentence or any consecutive or
concurrent custodial sentence, whichever is later; or
• if the offender is remanded in custody when the
supervision order is made, on the day on which the
offender is released from custody; or
• if the offender is in immigration detention when the
supervision order is made, on the day on which the
offender is released from immigration detention; or
• in any other case, on the date specified in the
supervision order.
Clause 18(2) provides that a supervision order that has been
renewed commences on the date specified in the renewed
supervision order.
11
Clause 19 sets out the period for which a supervision order operates.
Clause 19(1) provides that, unless sooner revoked, the period of a
supervision order is a period not exceeding 15 years specified by
the court in the order.
Clause 19(2) provides that any time spent in custody on remand
or serving a custodial sentence during the period of a supervision
order that has commenced counts in calculating the period of the
supervision order.
Clause 19(3) provides that any time spent in detention, subject to
an emergency detention order during the period of a supervision
order that has commenced counts in calculating the period of the
supervision order.
Clause 19(4) provides that any time spent in immigration
detention during the period of a supervision order that has
commenced does not count in calculating the period of the
supervision order.
Clause 19(5) provides that certain community-based sentences,
such as a community correction order within the meaning of the
Sentencing Act 1991, are to be served concurrently with a
supervision order.
Clause 20 provides that the conditions of a supervision order are
suspended during any time spent in custody on remand, or
serving a custodial sentence, in detention subject to an
emergency detention order, or in immigration detention, during
the period of the supervision order. While an offender is in such
custody, it is not always practicable for the offender to comply
with supervision conditions, or for the Secretary to facilitate,
observe or enforce supervision order compliance. Instead,
custodial management and programs can be used to reduce the
person's risk of further offending. Further, the Secretary does
not run nor does he or she have any involvement in immigration
detention facilities and may not facilitate, observe or enforce
supervision order compliance.
Clause 20(2) provides that the conditions of a supervision
order are not suspended during any period when the offender is
released on parole.
12
Clause 21 provides that a supervision order expires on the first of the
following to occur--
• at the end of its period of operation;
• on its revocation by a court under this Bill;
• on the commencement of another supervision order or a
detention order, or an interim detention order replacing
it;
• on the deportation or removal of the offender from
Australia under the Migration Act 1958 of the
Commonwealth;
• on the death of the offender.
Clause 22 sets out the process for making an application for the renewal of
a supervision order.
Clause 22(1) provides that at any time before the expiry of a
supervision order, the Secretary may apply to the court that made
the supervision order for the renewal of that order.
Clause 22(2) provides that an application for the renewal of a
supervision order is commenced by filing a notice of application
in accordance with any rules of court and at least one assessment
report or the latest progress report in respect of the offender.
Clause 22(3) sets out the materials that the Secretary must serve
on the eligible offender and provides that those materials must
be served as soon as practicable after the application for the
supervision order is commenced.
Clause 22(4) requires an application for a renewal of a
supervision order to be discontinued if the offender ceases to be
an eligible offender because the offender's conviction or finding
of guilt in respect of the serious sex offence or serious violence
offence, by reason of which the person is an eligible offender, is
set aside, or the custodial sentence is varied and a different
sentence is imposed such that the person is not an eligible
offender.
Clause 22(5) clarifies that an application for the renewal of a
supervision order may be made more than once.
13
Clause 22(6) clarifies that an application for the renewal of a
supervision order may be made even if the offender is remanded
in custody or is serving a custodial sentence.
Clause 23 provides that the Secretary may cause a progress report
(the contents of which are set out in clause 270) to be prepared in
respect of an eligible offender for the purposes of an application
for the renewal of a supervision order.
Clause 24 deals with the determination of an application for the renewal of
a supervision order.
Clause 24(1) provides that a court may renew the supervision
order, revoke the supervision order or do neither.
Clause 24(2) clarifies that an application for the renewal of a
supervision order may be heard and determined even if the
supervision order that is sought to be renewed has expired.
Clause 24(3) provides that subject to this clause, clause 14
(which sets out how a court may determine an application for a
supervision order) applies to the determination of an application
for the renewal of a supervision order as if a reference to an
application for a supervision order were a reference to an
application for the renewal of a supervision order.
Clause 24(4) provides that if a court renews a supervision order,
it may vary, add or remove any condition of the order, or vary the
maximum intervals between applications for review of the order.
Clause 24(5) provides that if a court renews a supervision
order, the existing supervision order, if any, is revoked on the
commencement of the supervision order that is renewed.
Clause 24(6) provides that the period of a renewed supervision
order is the period specified under clause 19(1), being a period
not exceeding 15 years as specified in the order, unless sooner
revoked.
Clause 25 clarifies the Bill applies to a supervision order that is renewed
in the same way as it applies to any other supervision order.
Any requirement to seek a review of a previous supervision order
ceases upon the making of a renewed supervision order.
Clause 25(2) provides that the expiry of a supervision order
sought to be renewed does not prevent the renewal of the order.
14
Clause 26 imposes requirements on the DPP and the Secretary to give
notices in respect of indefinite sentences.
Clause 26(1) requires that the DPP must notify the Secretary as
soon as practicable after an indefinite sentence is imposed on an
offender who is subject to a supervision order.
Clause 26(2) requires that the Secretary must give notice of the
indefinite sentence and of its effect on the supervision order to
the Authority as soon as practicable after being so notified under
subclause (1).
Division 3--Conditions of supervision order
Clause 27 sets out the purposes of conditions of a supervision order.
Clause 27(1) provides that the primary purpose of the conditions
of a supervision order is to reduce the risk of the offender
re-offending by committing a serious sex offence, a serious
violence offence or both, or an offence referred to in Schedule 3
of the Bill.
Clause 27(2) provides that the secondary purpose of the
conditions of a supervision order is to provide for the reasonable
concerns of the victim or victims of the offender in relation to
their own safety and welfare.
Clause 27(3) provides that in order to reduce the risk of the
offender re-offending, the conditions of a supervision order
may--
• promote the rehabilitation and treatment of the offender;
and
• address types of behaviour that may increase the risk
of the offender committing a serious sex offence, a
serious violence offence or both, an offence referred to
in Schedule 3, or engaging in any behaviour or conduct
that threatens the safety of any person (including the
offender).
Clause 27(4) requires that the court must ensure that any
conditions (other than the core conditions set out in clause 31)
of a supervision order constitute the minimum interference with
the offender's liberty, privacy or freedom of movement that is
necessary in the circumstances to ensure the purposes of the
15
conditions, and are reasonably related to the gravity of the risk of
the offender re-offending.
This subclause does not operate in respect of the core conditions
of the order. However, there may be circumstances in which
such considerations are relevant to the court refusing to make a
supervision order under clause 14(6).
Clause 28 sets out the requirements relating to the making and consideration
of submissions in relation to the conditions of a supervision
order.
Clause 28(1) provides that both the Secretary and the offender
may make submissions to the court in relation to the conditions
of a supervision order.
Clause 28(2) requires the court to consider, before imposing any
condition (other than a core condition), any victim submission
that it receives under clause 134 (which allows victims to make a
submission in respect of a supervision order). The court has
discretion to give a victim submission the weight that it thinks fit.
Clause 29 requires the court to consider any certificate of available
resources provided by the Secretary, and prohibits the court from
imposing a condition on a supervision order that is inconsistent
with a certificate of available resources provided to the court.
A certificate of available resources states whether or not there
are facilities or services available for the accommodation,
care, monitoring, rehabilitation or treatment of the offender.
The content requirements of a certificate of available resources
are set out in clause 344. The certificate of available resources
will apprise the court of any resourcing limitations known to the
Secretary in relation to proposed conditions. Examples include
whether there is available housing, an available carer or the
available forms of electronic monitoring and treatment programs.
Clause 30 requires the court to consider other orders to which the offender
is subject. It is likely that some eligible offenders may be subject
to other orders, which could interact or be inconsistent with
supervision orders.
Clause 30(1) requires the court, when considering the conditions
(other than the core conditions) to impose on a supervision order,
to have regard to the conditions of specified orders to which the
offender is subject, such as an interim accommodation order or a
16
family preservation order within the meaning of the Children,
Youth and Families Act 2005, a family violence intervention
order within the meaning of the Family Violence Protection
Act 2008 or a personal safety intervention order within the
meaning of the Personal Safety Intervention Orders Act 2010.
This clause recognises that inconsistencies might arise between
supervision order conditions relating to residence or curfew
requirements or non-contact conditions, and similar requirements
in relation to family violence or child protection orders.
Clause 30(2) provides that the court must not impose a condition
(other than a core condition) on a supervision order that is
inconsistent with a condition of another order to which the
offender is subject, unless the court consider it necessary to--
• reduce the risk of the offender re-offending by
committing a serious sex offence, a serious violence
offence or both, an offence referred to in Schedule 3, or
engaging in any behaviour or conduct that threatens the
safety of any person (including the offender); or
• provide for the reasonable concern of a victim of the
offender in relation to the safety and welfare of the
victim.
This clause does not apply in respect of core conditions, as
it is unlikely that the core conditions will impact upon the
effectiveness of another specified order and the core conditions
are automatic by operation of this Bill. When a supervision order
is made, the court has no discretion regarding the imposition of
core conditions.
Clause 31 sets out the core conditions of a supervision order. These are
conditions that apply to an offender subject to a supervision
order. A court does not have discretion in relation to the
application of core conditions. If a court makes a supervision
order in respect of an offender, the offender will automatically
be subject to the conditions set out in this clause.
These conditions apply irrespective of when the supervision
order is made. Noting clauses 106(6) and 111(4), if a court
confirms a supervision order upon review, or reviews the
conditions of a supervision order, it must ensure that the core
conditions on the order are in accordance with the requirements
in this clause, and make any variations and additions to the
17
conditions that are necessary for this purpose. This is relevant if
the core conditions are amended from time to time.
Clauses 31(2)-(4) provides that it is a core condition of a
supervision order that an offender must not commit a serious sex
offence, a serious violence offence or an offence referred to in
Schedule 3.
Both serious sex offenders and serious violence offenders are
prohibited from committing serious sex offences and serious
violence offences. This reflects that certain offenders have an
interconnected history and risk of both sex and violence
offending, as discussed above in respect of clause 14.
Both serious sex offenders and serious violence offenders will
also be prohibited from committing an offence referred to in
Schedule 3. These offences are not serious enough to warrant
the making of a post-sentence supervision or detention order.
However, this prohibition recognises that there are other offences
that a supervised offender may be at risk of committing, and that
it is important to protect the community from the harm that these
offences would cause, particularly when these offences may lead
to further more serious offending.
Clauses 31(5) to (8) provide that it is a core condition of a
supervision order that if the court requires an offender to reside at
a residential facility or a residential treatment facility, or the
Authority directs an offender to reside at a residential facility--
• the offender must not engage in conduct that poses a
risk to the good order of the facility or the safety and
welfare of offenders or staff at the facility or visitors to
the facility; and
• the offender must obey all instructions given by a
supervision officer or a specified officer under
clause 183.
Clause 31(9) provides that it is a core condition of a supervision
order that the offender must not engage in any behaviour or
conduct that threatens the safety of any person (including the
offender).
18
Clause 31(10) provides that it is a core condition of a supervision
order that the offender must attend at any place directed by the
Authority for the purpose of administering the conditions of the
order.
Clause 31(11) provides that it is a core condition of a supervision
order that the offender must attend at any place directed by the
Authority for the purpose of making assessments required by the
court, the Secretary or the DPP for the purposes of this Bill.
Clause 31(12) provides that it is a core condition of a supervision
order that the offender must report to, and receive visits from, the
Secretary or any person nominated by the Secretary for the
purposes of this subclause.
Clause 31(13) provides that it is a core condition of a supervision
order that the offender must notify the Authority of any change of
employment or new employment (whether paid or unpaid) at
least 2 clear days before commencing the changed or new
employment.
Clause 31(14) provides that it is a core condition of a supervision
order that the offender must not leave Victoria except with the
permission of the Authority, granted either generally or in
relation to a particular case.
Clause 31(15) provides that it is a core condition of a
supervision order that the offender must comply with a direction
given by the Authority under the emergency power in clause 142.
The emergency power of the Authority is the power to give
directions to an offender to manage the offender in a way that is
inconsistent with, or not provided for by, the conditions of the
supervision order or interim supervision order.
Clause 31(16) provides that it is a core condition of a supervision
order that the offender must obey all instructions given by a
community corrections officer or a specified officer under
clause 209. Clause 209 provides a power for a community
corrections officer or a specified officer to give reasonable
instructions to the offender.
Clause 32 sets out the requirements for imposing an intensive treatment and
supervision condition. An intensive treatment and supervision
condition is a condition requiring an offender to reside at a
residential treatment facility.
19
This is a new condition that was not available under the
Serious Sex Offenders (Detention and Supervision) Act 2009.
The purposes of a residential treatment facility are set out in
clause 196.
Unlike a residential facility, a residential treatment facility
is a secure facility, and an offender does not have a general
entitlement to enter and leave the facility. A residential treatment
facility is intended to provide a means of managing offenders
who cannot be managed by less restrictive means, such as by a
requirement that the offender reside in a residential facility.
The introduction of this condition reflects the Harper Review's
recommendation that there is a need for "step-up" facilities from
a residential facility, and "step-down" facilities from prison
(including for offenders currently on detention orders, or
offenders on supervision orders who are exiting prison).
Clause 32(1) provides that the court may impose a condition on a
supervision order requiring an offender to reside at a residential
treatment facility if the court is satisfied that--
• the condition is necessary to reduce the risk of the
offender committing a serious sex offence, a serious
violence offence or both; and
• less restrictive means of managing the risk referred to
in paragraph 29(1)(a) have been tried or considered.
Clause 32(2) provides that despite clause 14(2)(b), in determining
whether to impose an intensive treatment and supervision
condition, the court may have regard to the means of managing
the offender's risk (such as by way of the conditions that are, or
may be, imposed on an order) and the likely impact of the
supervision order on the offender.
Clause 32(3) provides that before imposing a condition
under subclause (1), the court must consider a treatment and
supervision plan filed by the Secretary and any other matter the
court considers appropriate. Clause 274 provides for what must
be set out in a treatment and supervision plan including the
treatment and services that will be offered to the offender to help
reduce the risk of the offender committing a serious sex offence
or a serious violence offence or both.
20
Clause 32(4) provides that if a court imposes an intensive
treatment and supervision condition, the court must also impose
the following specified conditions in relation to the offender--
• attending and participating in treatment or rehabilitation
programs;
• not leaving the residential treatment facility other than
with the permission of the Authority, or in accordance
with the treatment and supervision plan made in respect
of that offender, or in accordance with an instruction
given by a supervision officer or a specified officer
under clause 183;
• if permitted to leave the residential treatment facility,
being escorted and submitting to electronic monitoring
unless the Authority directs otherwise;
• submitting to electronic monitoring within the
residential treatment facility;
• submitting to various conditions relating to the fitting,
operation and removal and repair of any electronic
monitoring device or equipment used for electronic
monitoring.
It is important to note that offenders will not be forced to submit
to medical treatment, however, offenders that meet the relevant
thresholds under the Disability Act 2006 or the Mental Health
Act 2014 will continue to be eligible for, or provided with,
compulsory treatment under those arrangements which set up
comprehensive frameworks with safeguards for persons requiring
compulsory treatment.
Clause 32(5) provides that an intensive treatment and supervision
condition remains in force for a period, not exceeding 2 years,
specified by the court. This time limit reflects the "step-up" and
"step-down" nature of the condition, and the intention for an
offender made subject to this condition to transition from a
residential treatment facility to the community.
Clause 33 provides that when making a supervision order, the court must
consider imposing other conditions relating to residence, or other
suggested conditions under the Bill. These conditions are set out
in clauses 34 and 35, respectively. In imposing these conditions,
the court ought to have regard to, in particular, the purpose of
21
conditions (clause 27) and the obligation to give paramount
consideration to the safety and protection of the community
(clause 5).
Clause 34 sets out the conditions relating to the offender's place of
residence that a court, when making a supervision order, must
consider imposing on an offender.
Clause 34(1) provides that, subject to subclause (2) and
clause 36(3), the court may impose a condition on a supervision
order in relation to the place where the offender is to reside, the
times at which the offender must be present at the place of
residence or the circumstances under which the offender may
leave the place of residence.
For example, a court may impose on an offender a condition
that the offender reside at a residential facility under the Bill
(the purposes of which are set out at clause 179), must be present
at a residential address in the community between particular
hours or may only leave his or her residence when accompanied
by a specified person or class of persons.
Clause 34(2) provides that a condition requiring an offender to
reside at a residential facility may be imposed on a supervision
order only if a court referred to in clause 8(1)(a) has imposed on
the offender a custodial sentence for a serious sex offence.
This reflects existing arrangements under the Serious Sex
Offenders (Detention and Supervision) Act 2009 by which
only eligible sex offenders can be required to reside in a
residential facility. These facilities have been established to
meet the particular needs and risks of serious sex offenders,
rather than serious violence offenders.
Clause 34(3) provides that in considering whether to impose a
condition requiring an offender to reside at a residential facility,
the court must consider whether or not the offender should reside
at a residential facility and be satisfied that no other suitable
accommodation is available.
Although not as restrictive as a residential treatment facility,
a residential facility still imposes greater restrictions on an
offender than if the offender resided at another residence in the
community. Subclause (3) reflects the restrictive nature of such a
condition, by limiting its imposition to circumstances where no
22
other suitable accommodation is available. This subclause also
reflects the requirements under clause 27(4).
Clause 35 sets out other discretionary conditions which the court may
consider imposing if it makes a supervision order.
Clause 35(1) suggests the matters in relation to which the court
may impose a condition. These include, for example, the places
or areas that the offender must not visit or may visit only at
specified times, the treatment or rehabilitation programs or
activities in which the offender must attend and participate in, the
persons or classes of persons with whom the offender must not
have contact, and the forms of monitoring (including electronic
monitoring) of compliance with the supervision order to which
the offender must submit.
These conditions are based upon the suggested conditions
contained in section 17 of the Serious Sex Offenders
(Detention and Supervision) Act 2009. The reference to
"violent conduct" in section 17(1)(j) of that Act has not been
included in clause 35(1)(g) of the Bill. This concept is no longer
required as clause 35(1)(g) allows the imposition of conditions
that manage the risk of the offender committing a serious
violence offence, another specified violence offence, or
threatening the safety of any person.
Clause 35(2) provides that if the court imposes a condition
under this clause requiring the offender to submit to electronic
monitoring, the court must also impose the conditions specified
in this subclause. These conditions relate to facilitating the
practical operation of the electronic monitoring, such as ensuring
that the device remains charged at all times, is not tampered or
removed, and that the offender submit to all visits from the
Secretary for any purpose, including so that the Secretary can
install and maintain the monitoring equipment.
Clause 36 Clause 36(1) allows the court to authorise the Authority to
give a direction in relation to any condition of the order, or to
authorise the Authority to give a direction in relation to a specific
condition, such as in relation to an offender's use of drugs or
alcohol, or access to the Internet. Part 11 of the Bill regulates
the powers of the Authority in respect of issuing directions to
offenders.
23
Clause 36(2) provides that the court may impose a condition that
either authorises or prohibits the Authority to direct that an
offender reside at a residential facility.
Clause 36(3) clarifies that a condition authorising the Authority
to direct an offender to reside at a residential facility may only be
imposed on a supervision order if a court referred to in clause
8(1)(a) has imposed on the offender a custodial sentence for a
serious sex offence.
Clause 36(4) provides that if a court imposes a condition
authorising the Authority to direct an offender to reside at a
residential facility (under subclause (2)(a)) the court may impose
a condition authorising the Authority to give directions relating to
curfew times, the circumstances under which the offender can
leave the facility and monitoring of the offender.
Clause 36(5) provides that the court may not authorise the
Authority to direct that an offender reside at a residential
treatment facility. Only a court, in accordance with clause 32 of
the Bill, may impose a condition on supervision order that an
offender reside at a residential treatment facility.
Clause 36(6) clarifies that clause 36(5) does not limit the court in
otherwise imposing a condition authorising the Authority to give
directions.
Clause 36(7) provides that it is a condition of a supervision order
that the offender comply with any direction given under an
authorisation referred to in this clause.
Clause 37 provides that when making a supervision order, the court
must consider imposing a condition that the offender must not
contravene the Firearms Act 1996 or the Control of Weapons
Act 1990.
Clause 38 provides that the court may impose any other condition on a
supervision order that it considers appropriate, having regard to
the purposes of the conditions of supervision order. In exercising
its powers under this clause, the court will need to have regard to,
in particular, the purpose of conditions (clause 27) and the
obligation to give paramount consideration to the safety and
protection of the community (clause 5).
24
Clause 39 introduces a new power for the court relating to firearms and
weapons. This power was not available under the Serious Sex
Offenders (Detention and Supervision) Act 2009. This clause
recognises the role and risk of firearms and weapons in causing
serious interpersonal harm. This clause operates together with
clause 359, which amends the Firearms Act 1996 so that a
person under a supervision order is a prohibited person under
that Act.
Clause 39(1) provides that, subject to subclause (2) if a court
makes a supervision order, the court may cancel an offender's
firearms authority, revoke a weapons approval held by an
offender or revoke the application of a weapons exemption to an
offender.
Clause 39(2) provides that if a supervision order expires or is
revoked or cancelled, any cancellation of a firearm's authority
on the order ceases to have effect and any revocation of a
weapons approval or application of a weapons exemption on
the order ceases to have effect. This clause has the effect that a
cancellation or revocation under subclause (1) will only remain
while the supervision order is on foot. If a new supervision order
is made in place of an old supervision order, the court would be
able to cancel or revoke an authority, approval or application
under subclause (1) again at the time of the making of the new
order if the court was minded to do so.
Clause 39(3) provides that if the court makes an order under
subclause (1), no appeal lies against that decision under the
Firearms Act 1996 or the Control of Weapons Act 1990, and
the offender may not apply for a declaration under section 189 of
the Firearms Act 1996 that the offender is deemed not to be a
prohibited person under that Act, or is so deemed for limited
purposes only. While the offender does not have a right of
appeal under these Acts, the offender has a right to appeal a
decision under subsection (1) in clauses 115(1)(f) and (g) of the
Bill. Because of the unique context of the scheme, this ensures
that any appeal relating to an offender's supervision order or
interim supervision order is made in the context of the post-
sentence scheme.
25
Division 4--Restrictive conditions and temporary conditions
Clause 40 sets out the process for making an application for a declaration
that a condition of a supervision order is a restrictive condition.
There are two categories of restrictive conditions. The first
category includes the core conditions referred to in clauses 31(2),
(3), (4), (5), (7) and (9), which are automatically restrictive
conditions by operation of the definition of restrictive condition
in clause 3. This category applies to every offender on a
supervision order because the core conditions prohibiting further
sexual offending or violent offending or conduct are always
restrictive conditions. The second category of restrictive
conditions is provided for in clauses 40 and 41, which specify
certain conditions that may be declared by the court to be
restrictive depending on the individual circumstances of each
case.
The contravention of a restrictive condition carries with it a
minimum term of imprisonment of not less than 12 months,
unless certain exceptions exist (see section 10A of the
Sentencing Act 1991). This is designed to have a deterrent
effect by putting the offender on notice that a breach of a
restrictive condition will carry particularly harsh consequences.
Clause 40(1) provides that on the making or renewal of a
supervision order, or on a review of the order or a condition of
the order, the Secretary may apply to the court for a declaration
under clause 41.
Clauses 40(2) and 40(3) provide that the application must be
commenced by filing a notice of application in accordance with
any rules of the court, and prescribe that specified material must
be served on the offender as soon as practicable after the
application is commenced.
Clause 41 provides the court with a power to declare that a condition
specified in subclause (1) is a restrictive condition.
Clause 41(1) provides that the court may only declare the
following conditions a restrictive condition--
• that the offender must not consume alcohol;
• that the offender must not use prohibited drugs, obtain
drugs unlawfully or abuse drugs of any kind;
26
• that the offender must reside at a specified place
(including a residential facility or a residential treatment
facility);
• that the offender must be present at the offender's place
of residence between specified times;
• that the offender may only leave the offender's place of
residence in accordance with specified conditions;
• that the offender must not visit a specified place or area
or may visit the place or area only at specified times;
• that the offender must not have contact with a specified
person or class of persons; and
• that the offender must not contravene the Firearms
Act 1996 or the Control of Weapons Act 1990.
These conditions are conditions that may be imposed under
clauses 34, 35 and 37.
Clause 41(2) clarifies that a core condition referred to in
clause 31(2), (3), (4), (5), (7) or (9) must not be declared to be a
restrictive condition. This is because such conditions are already
restrictive conditions by operation of the definition of restrictive
condition in clause 3.
Clause 41(3) provides that a court may make a declaration
under subclause (1) only if the court is satisfied on reasonable
grounds that the declaration is necessary to address the risk
of the offender committing a serious sex offence, a serious
violence offence or both, or an offence referred to in Schedule 3.
The condition to which the declaration applies must therefore be
related to this risk, and the court must be satisfied on reasonable
grounds that the declaration--and the deterrent effect that it
carries--is necessary to address this risk.
Clause 41(4) provides that in considering whether to make a
declaration under subclause (1), the court must have regard
to the antecedents of the offender, including any previous
contraventions of a supervision order. For example, the court
may take into account the nature of the offender's previous
offending and its relationship to the relevant condition, or the
fact that the offender has previously breached conditions of a
supervision order such that the additional consequences flowing
from a declaration may be necessary to prevent further breaches.
27
Clause 41(5) provides that whether or not a declaration is
made under clause 41 (1), the court must ensure that the core
conditions on the order are in accordance with the requirements
of clause 31 and make any variations and additions to the
conditions that are necessary to reflect any subsequent
amendments made to the core conditions set out in clause 31
since the order was made, last renewed or reviewed.
Clause 42 allows a court to declare that particular conditions are temporary
conditions.
A temporary condition is a condition that applies for a period
specified by the court not exceeding 6 months. A temporary
condition may be used in situations including where the court is
not satisfied that it is in a position to finalise the conditions it
wishes to be imposed on a supervision order. For example, the
availability of facilities or services for the accommodation, care,
monitoring, rehabilitation or treatment of the offender may be
likely to change in the near future.
Clause 42(1) provides that on making a supervision order, the
court may declare that a condition of the order (other than a core
condition) is a temporary condition that applies for a period not
exceeding 6 months specified by the court in the order.
Clause 42(2) provides that before the end of the specified period,
the court may require the parties to attend before the court for a
hearing to determine the final conditions to be imposed on the
supervision order.
Clause 42(3) provides that at a hearing referred to in
subclause (2), the Secretary may provide a further certificate
of available resources and the parties may make further
submissions in relation to any final conditions proposed to be
imposed on the supervision order.
Clause 42(4) provides that Part 10 of the Bill applies to a hearing
referred to in subclause (2). Part 10 sets out the procedure
relating to applications under the Bill. This subclause clarifies
that Part 10 is to apply to a hearing under subclause (2),
notwithstanding that such a hearing does not involve the
determination of any application by the Secretary under the Bill.
28
Division 5--Extension of intensive treatment and
supervision condition
Clause 43 sets out the requirements for the making of an application by the
Secretary to the court that imposed the intensive treatment and
supervision condition, where the Secretary is seeking an
extension of that condition.
Clause 44 sets out the approach the court is to follow in determining
whether to extend an intensive treatment and supervision
condition. Reflecting the Harper Review's recommendation
that the residential treatment facility provide a secure option that
was a "step-up" from a residential facility, and a "step-down"
from prison focused on treatment to enable offenders to transition
to less restrictive forms of supervision, it is intended that
accommodation within the facility be for a limited time.
Clause 44(1) provides that on an application under clause 43 for
a first extension, the court may extend an intensive treatment and
supervision condition for a period not exceeding 12 months if the
court is satisfied the condition is necessary to reduce the risk of
the offender committing a serious sex offence or a serious
violence offence or both and the risk cannot be reduced using
less restrictive means of supervision.
Clause 44(2) provides that on an application under clause 43
for a second or subsequent extension, the court may extend an
intensive treatment and supervision condition for a period not
exceeding 12 months if the court is satisfied that exceptional
circumstances exist.
Clause 44(3) provides that the court may make no order in
respect of an intensive treatment and supervision condition
application even if the court is satisfied as required by this clause.
Part 4--Interim supervision orders
Clause 45 defines court in this Part of the Bill to mean the court in which
an application for a supervision order or the renewal of a
supervision order in respect of an eligible offender has been
commenced but not determined.
29
Clause 46 sets out the process for making an application for an interim
supervision order.
An interim supervision order is a short-term order, not exceeding
4 months except in exceptional circumstances. It is designed to
provide a mechanism to address the risk posed by an offender in
the period between making an application for a supervision order
or the renewal of a supervision order, and the hearing of that
application.
Clause 46(1) provides that the Secretary may apply to the court
for an interim supervision order in respect of an eligible offender
who is the subject of an application for a supervision order under
clause 13 or the renewal of a supervision order under clause 22.
Clauses 46(2) and 46(3) provide that the application must be
commenced by filing a notice of application in accordance with
any rules of the court, and prescribe that specified material must
be served on the offender as soon as practicable after the
application is commenced.
Clause 46(4) clarifies that an application under subclause (1) may
be commenced at the same time as an application under clause 13
or 22, or at any later time before the application under clause 13
or 22 is determined.
Clause 46(5) requires an application for an interim supervision
order to be discontinued if the offender ceases to be an eligible
offender because the offender's conviction or finding of guilt in
respect of the serious sex offence or serious violence offence, by
reason of which the person is an eligible offender, is set aside, or
the custodial sentence is varied and a different sentence is
imposed such that the person is not an eligible offender.
Clause 46(6) clarifies that an application for an interim
supervision order may be made more than once in respect of an
eligible offender.
30
Clause 47 deals with the determination of an application for an interim
supervision order.
Clause 47(1) provides that on an application under clause 46, the
court may only make an interim supervision order in respect of
an offender if--
• the court is satisfied that--
• an application has been made for a supervision
order under clause 13 or the renewal of a
supervision order under clause 22 in respect of
an eligible offender, but that application has not
been determined; and
• either the offender is no longer, or will not be,
remanded in custody or serving a custodial
sentence when the application under clause 13
is determined, or the previous supervision order
has expired or will have expired before the
application under clause 22 is determined;
• it appears to the court that the documents in support of
the application under clause 13 or 22 would, if proved,
justify the making or renewal of a supervision order;
and
• the court is satisfied that it is in the public interest to
make an interim supervision order.
This standard is lower than that required for making a
supervision order and is similar to the standard that judges
are accustomed to applying on applications for interlocutory
injunctions, when orders are made quickly and without a full
trial of fact.
Clause 47(2) clarifies that in considering whether the making
of the interim supervision order is in the public interest under
subclause (1), the court must have regard to the reason why
the application under clause 13 or 22 was not, or will not be,
determined before the offender is released from custody or before
the expiry of the previous supervision order, as the case requires,
and any other matter the court considers appropriate.
Clause 47(3) clarifies that if the court is satisfied as required by
clause 47(1) the court may make an interim supervision order, or
make no order.
31
Clause 47(4) clarifies the court may continue to hear and
determine an application for an interim supervision order even
if the offender has ceased to be an eligible offender because the
custodial sentence has been served or has expired or the offender
is no longer subject to a supervision order.
Clause 48 sets out the content of an interim supervision order.
Clause 48(1) requires the interim supervision order to state that
the court is satisfied that the making of the order is justified and it
is in the public interest to make the order.
Clause 48(2) lists a number of other matters that the interim
supervision order must specify, such as the name of the offender,
the conditions of the order and the period of the order.
Clause 48(3) requires the interim supervision order to be signed
by the judge constituting the court that made it and include the
name of the judge.
Clause 49 provides that clause 14 and Division 3 of Part 3 (other than
clauses 37 and 39) apply to the making of an interim supervision
order as if a reference to a supervision order were a reference
to an interim supervision order. These clauses relate to the
conditions that may be imposed under a supervision order.
Clause 37 is a mirroring provision of clause 50 and need not
apply to the making of an interim supervision order. Clause 39,
which relates to firearms, does not apply in respect of an interim
supervision order. This matter is instead addressed by clause 51.
Clause 50 provides that when making an interim supervision order, the
court must consider imposing a condition that the offender must
not contravene the Firearms Act 1996 or the Control of
Weapons Act 1990.
Clause 51 provides the court with powers of suspension in respect of
firearms and weapons.
Clause 51(1) provides that subject to subclause (2), in an interim
supervision order, the court may suspend an offender's firearms
authority, suspend a weapons approval held by an offender or
suspend the application of a weapons exemption to an offender.
32
Clause 51(2) provides that if an interim supervision order expires
or is revoked or cancelled, any suspension of a firearms
authority, weapons approval or application of a weapons
exemption on the order ceases to have effect.
Clause 51(3) provides that if a court makes an order under
clause 51(1) no appeal lies against that decision under the
Firearms Act 1996 or the Control of Weapons Act 1990, and
the offender may not apply for a declaration under section 189
of the Firearms Act 1996 that the offender is deemed not to be
a prohibited person under that Act, or is so deemed for limited
purposes only. While the offender does not have a right of
appeal under these Acts, the offender has a right to appeal a
decision under subclause (1) in clauses 115(1)(f) and (g) of the
Bill. Because of the unique context of the scheme, this ensures
that any appeal relating to an offender's supervision order or
interim supervision order is made in the context of the post-
sentence scheme.
Clause 52 requires the Secretary to give a copy of the interim supervision
order to the Authority and, in some circumstances, the Adult
Parole Board.
Clause 52(1) provides that as soon as practicable after the
making of an interim supervision order, the Secretary must give a
copy of the order to the Authority and, if the offender is serving a
custodial sentence when the order is made, the Adult Parole
Board.
Clause 52(2) requires the Secretary to give a copy of the order
to the Adult Parole Board, as soon as practicable, if the offender
commences serving a custodial sentence before the expiry or
revocation of the interim supervision order.
Clause 53 sets out when an interim supervision order commences.
Clause 53(1) provides that, subject to subclause (2), an interim
supervision order commences--
• if the offender is serving a custodial sentence when
the interim supervision order is made, on the day the
offender completes the custodial sentence or any
consecutive or concurrent custodial sentence,
whichever is later; or
33
• if the offender is remanded in custody when the
interim supervision order is made, on the day on
which the offender is released from custody; or
• if the offender is in immigration detention when the
interim supervision order is made, on the day on which
the offender is released from immigration detention; or
• in any other case, on the date specified in the interim
supervision order.
Clause 53(2) provides that if an offender is the subject of an
application for the renewal of a supervision order, an interim
supervision order commences on the expiry of the previous
supervision order (if still in force), or on the date specified in
the interim supervision order.
Clause 54 sets out the period for which an interim supervision order
operates.
Clause 54(1) provides that, subject to subclause (2) the period of
an interim supervision order is a period not exceeding 4 months
specified by the court in the order.
This limitation reflects the intention that an interim supervision
order is designed to provide a mechanism to address the risk
posed by an offender in the period between making an
application for a supervision order or the renewal of a
supervision order and the determination of that application.
An interim supervision order is not intended to address this risk
on a long-term basis.
Clause 54 (2) provides that the maximum period of an interim
supervision order, including any extensions, must not exceed
4 months unless the court making or extending the interim
supervision order is satisfied that exceptional circumstances
exist. This acknowledges that in some exceptional
circumstances, it may not, for example, be practicable or
possible to have an application for a supervision order or the
renewal of a supervision order heard and determined within
4 months of an interim supervision order being made.
Clause 54(3) provides that any time spent in custody on remand
or serving a custodial sentence during the period of an interim
supervision order that has commenced counts in calculating the
period of the interim supervision order.
34
Clause 54(4) provides that any time spent in detention subject
to an emergency detention order during the period of an interim
supervision order that has commenced counts in calculating the
period of the interim supervision order.
Clause 54(5) provides that any time spent in immigration
detention during the period of an interim supervision order that
has commenced does not count in calculating the period of the
interim supervision order.
Clause 54(6) provides that certain community-based sentences,
such as a community correction order within the meaning of the
Sentencing Act 1991, are to be served concurrently with an
interim supervision order.
Clause 55 provides that the conditions of an interim supervision order
are suspended during any time spent in custody on remand,
or serving a custodial sentence, in detention subject to an
emergency detention order, or in immigration detention, during
the period of the interim supervision order. While an offender is
in such custody, it is not always practicable for the offender to
comply with supervision conditions, or for the Secretary to
facilitate, observe or enforce supervision order compliance.
Instead, custodial management and programs can be used to
reduce the person's risk of further offending. Further, the
Secretary does not run nor does the Secretary have any
involvement in immigration detention facilities and may not
facilitate, observe or enforce supervision order compliance.
Clause 55(2) provides that the conditions of an interim
supervision order are not suspended during any period when
the offender is released on parole.
Clause 56 provides than an interim supervision order expires on the first
of the following to occur--
• at the end of its period of operation, including any
extension of that period;
• on the determination of the application for a supervision
order or the renewal of a supervision order in relation to
which the interim supervision order was made;
• on the determination of an application for a detention
order or an interim detention order in respect of the
offender;
35
• on the deportation or removal of the offender from
Australia under the Migration Act 1958 of the
Commonwealth;
• on the death of the offender.
Clause 57 sets out the process for making an application to extend an
interim supervision order.
Clause 57(1) provides that at any time before the expiry of an
interim supervision order, the Secretary may apply to the court
that made the interim supervision order to extend that order.
Clauses 57(2), (3) and (4) provide that an application must be
commenced by filing a notice of application in accordance with
any rules of the court, prescribe that specified material must be
served on the offender as soon as practicable after the application
is commenced, and clarify that this service may be by post.
Clause 57(5) provides that despite subclauses (2), (3) and (4), an
application to extend an interim supervision order may be made
by oral submission at a directions hearing under clause 126.
Clause 57(6) requires an application to extend an interim
supervision order to be discontinued if the interim supervision
order has already expired, or the offender ceases to be an eligible
offender because the offender's conviction or finding of guilt in
respect of the serious sex offence or serious violence offence, by
reason of which the person is an eligible offender, is set aside,
or the custodial sentence is varied and a different sentence is
imposed such that the person is not an eligible offender.
Clause 57(7) clarifies that an application to extend an interim
supervision order may be made more than once in respect of an
eligible offender.
Clause 58 deals with the determination of an application to extend an
interim supervision order.
Clause 58(1) provides that on an application under clause 57,
the court may extend the interim supervision order for a specified
period (subject to clause 54(2)), revoke the interim supervision
order or make no order.
36
Clause 58(2) provides that clause 47, which sets out how an
application for an interim supervision order is to be determined,
applies as if a reference to an application for an interim
supervision order were a reference to an application to extend an
interim supervision order, and a reference to making an interim
supervision order were a reference to extending an interim
supervision order.
Clause 58(3) provides that if the court extends an interim
supervision order, the court may vary, add or remove any
conditions of the interim supervision order.
Clause 58(4) provides that Division 3 of Part 3 applies to any
variation or addition of a condition of an interim supervision
order under subclause (3).
Clause 59 sets out the content of an order extending an interim supervision
order.
Clause 59(1) requires the order extending an interim supervision
order to state that the court is satisfied that the extension is
justified and it is in the public interest to make the order.
Clause 59(2) lists a number of other matters that the order
extending an interim supervision order must specify, being the
name of the offender, any change made to the conditions of the
interim supervision order, and the period for which the interim
supervision order is extended by the court.
Clause 59(3) requires the order to be signed by the judge
constituting the court that made it and include the name of the
judge.
Clause 60 requires the Secretary to give a copy of an order on an
application to extend an interim supervision order to the
Authority and, in some circumstances, the Adult Parole Board.
Clause 60(1) provides that as soon as practicable after the making
of the order, the Secretary must give a copy of the order to the
Authority and, if the offender is serving a custodial sentence
when the order is made, the Adult Parole Board.
Clause 60(2) requires the Secretary to give as soon as practicable
a copy of the order to the Adult Parole Board if the offender
commences serving a custodial sentence before the expiry or
revocation of the interim supervision order as extended.
37
Part 5--Detention orders
Clause 61 sets out how the DPP may apply for a detention order.
Clause 61(1) provides that the DPP may apply to the Supreme
Court for a detention order in respect of a person who is an
eligible offender at the time when the application is commenced.
Unlike a supervision order, all applications for a detention order
are to be made in the Supreme Court, regardless of which court
sentenced the offender to the custodial sentence by reason of
which the offender is an eligible offender. This requirement
reflects the impact of a detention order on an offender.
Clause 61(2) details the documents that must be filed by the DPP,
being a notice of application in accordance with any rules of
court, and an assessment report in respect of the eligible
offender or, if the offender is subject to a supervision order or an
emergency detention order, a progress report and the most recent
assessment report in respect of the offender.
Clause 61(3) sets out the materials that the DPP must serve on
the eligible offender and provides that those materials must be
served as soon as practicable after the application for the
detention order is commenced.
Clause 61(4) requires an application for a detention order to be
discontinued if the offender ceases to be an eligible offender
because the offender's conviction or finding of guilt in respect of
the serious sex offence or serious violence offence, by reason of
which the person is an eligible offender, is set aside, or the
custodial sentence is varied and a different sentence is imposed
such that the person is not an eligible offender.
Clause 62 deals with the determination of an application for a detention
order.
Clause 62(1) provides that on an application for a detention
order under clause 61, the Supreme Court may make a detention
order in respect of an eligible offender or an offender referred to
in subclause (7) if, and only if, the court is satisfied under
clauses 63(1) and 64(1).
Clauses 62 to 64 adopt the legal tests used in sections 35 and 36
of the Serious Sex Offenders (Detention and Supervision)
Act 2009. These sections have been restructured to capture the
expanded scheme and clarify that the court may make a detention
38
order despite the offender serving a custodial sentence or being
on remand, where the offender will pose an unacceptable risk on
release from custody. This addresses the issues arising from the
case of DPP v AJP [No 2] (2016) VSC 198.
The Bill is not intended to substantively change how the
Supreme Court is to determine an application for a detention
order. In particular, clause 62 is intended to preserve the 2 stage
process under the Serious Sex Offenders (Detention and
Supervision) Act 2009 of the Supreme Court first being required
to determine whether the offender poses an unacceptable risk if
a detention or supervision order is not made, and then being
required to determine whether there would be an unacceptable
risk unless a detention order were made.
Clause 62(2) provides that for the purposes of clauses 63 and 64,
the court must be satisfied by acceptable, cogent evidence, to a
high degree of probability, that the offender poses or will pose an
unacceptable risk.
Clause 62(3) provides that if the Supreme Court is not satisfied
that the risk referred to in clause 564(1) would be unacceptable
unless a detention order were made, the Supreme Court may
make a supervision order in respect of the offender. This clause
replicates section 36(4) of the Serious Sex Offenders (Detention
and Supervision) Act 2009. There is no need for an application
for both a detention order and supervision order to be made
together in order to provide the court with both options.
However, by operation of clauses 62(1) and 63 the court must
first be satisfied that the offender poses the risk set out in
clause 63(1) before making a supervision order under this
subclause as an alternative to a detention order.
Clause 62(4) provides that Divisions 2 (other than clause 13), 3
and 4 of Part 3 apply, with any necessary modifications, to the
making of a supervision order under subclause (3) as if it were a
supervision order made under Part 3.
Clause 62(5) clarifies that the Supreme Court, even if satisfied as
required under clause 64, may make no order in circumstances
where it is empowered to make a detention order or supervision
order under this clause. This clarifies that the making of a
detention order or supervision order is a discretionary power,
and the court is not obliged to make such an order even if the
criteria for the making of an order is satisfied.
39
Clauses 62(6) and (7) clarify that the Supreme Court can
continue to hear and determine an application under clause 61 for
a detention order even if the offender has ceased to be an eligible
offender because the custodial sentence has been served or has
expired, or the offender is no longer subject to a supervision
order, or the offender is remanded in custody or is serving a
custodial sentence.
Clause 63 sets out the test of unacceptable risk of which the Supreme Court
must be satisfied before making a detention order.
Clause 63(1) provides that for the purposes of clause 62, the
Supreme Court must be satisfied that the offender poses, or
after release from custody will pose, an unacceptable risk of
committing a serious sex offence or a serious violence offence or
both if a detention order or a supervision order is not made and
the offender is in the community.
Clause 63(1) is based on the existing test under section 35 of the
Serious Sex Offenders (Detention and Supervision) Act 2009.
However, as with the test under clause 14, the test now reflects
the expansion of the post-sentence supervision and detention
scheme--as recommended by the Harper Review--to also cover
offenders who have committed serious violence offences, and
the findings in the Harper Review that some offenders have an
interconnected history of both sex and violent offending, and
may pose a risk of further offending that is of a different type to
the offence for which they were initially sentenced.
Like section 35(1) of the Serious Sex Offenders (Detention
and Supervision) Act 2009, as amended by the Corrections
Legislation Miscellaneous Amendment Act 2017, clause 63(1)
clarifies that the court may make a detention order or a
supervision order despite the offender serving a custodial
sentence or being on remand, where the offender will pose an
unacceptable risk on release from custody. The addresses
the issues arising from the case of DPP v AJP [No 2] (2016)
VSC 198.
Clause 63(2) provides that in determining whether an offender
poses or will pose an unacceptable risk, the Supreme Court must
have regard to any assessment report or progress report filed in
relation to the application (subject to clause 273 which sets out
the requirements for managing disputed reports); any other report
40
filed, tendered or made, or evidence given, in relation to the
application; and any other matter the court considers appropriate.
Clause 63(2) is based on section 35(2) of the Serious Sex
Offenders (Detention and Supervision) Act 2009, but is
directed to the question of unacceptable risk (rather than the
likelihood of offending, as under section 35(2) of the Serious
Sex Offenders (Detention and Supervision) Act 2009).
Such wording is more appropriate, as it reflects that the
intention of the scheme is to manage an offender who poses
an unacceptable risk. The likelihood of offending is merely a
consideration in the assessment of the unacceptability of this
risk. The amended wording also makes the language used in
the criteria for making a supervision order consistent with the
language used in the criteria for making a detention order.
Clause 63(3) provides that in determining whether an offender
poses or will pose an unacceptable risk under this clause, the
Supreme Court must not have regard to the means of managing
the risk (such as by way of conditions imposed on an order) or
the likely impact of a detention order or a supervision order on
the offender. These issues will be addressed when the court
determines whether to make the detention order, and the duration
of the order.
Clause 63(4) provides that the Supreme Court may determine that
an offender poses an unacceptable risk under this clause even if
the likelihood that the offender will commit a serious sex offence,
a serious violence offence or both is less than more likely than
not. The risk that an offender poses of committing a serious sex
offence, a serious violence offence or both may nonetheless be
unacceptable having regard to matters such as the likelihood of
the occurrence of risk and the seriousness of the consequences if
the risk eventuates.
Clause 63(5) places the burden of proof of establishing that an
offender poses or will pose an unacceptable risk on the DPP.
Clause 64 requires the Supreme Court to be satisfied that a detention order
is the only option to deal with the risk posed by the offender.
Clause 64(1) provides that if the Supreme Court is satisfied that
the offender poses an unacceptable risk under clause 63(1), it
must also be satisfied that the risk of the offender committing, or
after release from custody committing, a serious sex offence, a
41
serious violence offence or both would be unacceptable unless a
detention order were made.
Clause 64(2) provides that the Supreme Court may determine that
an offender poses an unacceptable risk under this clause even if
the likelihood that the offender will commit a serious sex offence,
a serious violence offence or both is less than more likely than
not. The risk that an offender poses of committing a serious sex
offence, a serious violence offence or both may nonetheless be
unacceptable having regard to matters such as the likelihood of
the occurrence of risk and the seriousness of the consequences if
the risk eventuates.
Clause 64(3) provides that in determining whether an offender
poses or will pose an unacceptable risk under subclause (1),
the Supreme Court may have regard to the means of managing
the risk and the likely impact of the detention order on the
offender. This clause is intended to reflect the courts' existing
interpretation of the matters the court may consider when making
a determination under section 36 of the Serious Sex Offenders
(Detention and Supervision) Act 2009.
Clause 65 sets out the content of a detention order.
Clause 65(1) requires the detention order to state that the
Supreme Court is satisfied the offender poses, or will pose, an
unacceptable risk of committing a serious sex offence, a serious
violence offence or both if a detention order is not made and the
offender is in the community.
Clause 65(2) lists a number of other matters that the detention
order must specify, such as the name of the offender and the
period of the order.
Clause 65(3) requires the detention order to be signed by the
judge who made it and include the name of the judge.
Clause 66 provides that the effect of a detention order is to commit the
offender to detention in a prison for the period of the order.
Clause 255 clarifies that an offender subject to a detention order
must be treated in a way that is appropriate to the offender's
status as an unconvicted prisoner, subject to certain exceptions.
42
Clause 67 requires the DPP to give a copy of the order to the Secretary, the
Authority and, in some circumstances, the Adult Parole Board.
Clause 67(1) provides that as soon as practicable after the making
of a detention order, the DPP must give a copy of the order to the
Secretary, the Authority and, if the offender is serving a custodial
sentence when the order is made, the Adult Parole Board.
Clause 67(2) requires the DPP to give a copy of the order to
the Adult Parole Board, as soon as practicable, if the offender
commences serving a custodial sentence before the expiry or
revocation of the detention order.
Clause 68 specifies when a detention order commences.
Clause 68(1) provides that, subject to subclause (2), a detention
order commences--
• if the offender is serving a custodial sentence when
the detention order is made, on the day the offender
completes the custodial sentence or any consecutive
custodial or concurrent sentence, whichever is later; or
• if the offender is remanded in custody when the
detention order is made, on the day on which the
offender is released from custody; or
• if the offender is in immigration detention when the
detention order is made, on the day on which the
offender is released from immigration detention; or
• in any other case, on the date specified in the detention
order.
Clause 68(2) provides that a detention order that has been
renewed commences on the date specified in the renewed
detention order.
Clause 69 sets out the period for which a detention order operates.
Clause 69(1) provides that, unless sooner revoked, the period of a
detention order is a period not exceeding 3 years specified by the
Supreme Court in the order.
Clause 69(2) provides that any time spent in custody on remand
or serving a custodial sentence during the period of a detention
order that has commenced counts in calculating the period of the
detention order.
43
Clause 69(3) provides that any time spent in immigration
detention during the period of a detention order that has
commenced does not count in calculating the period of the
detention order.
Clause 69(4) provides that if an offender is subject to a detention
order and is sentenced to certain community-based sentences,
such as a community correction order within the meaning of the
Sentencing Act 1991, the sentencing order commences on the
expiry of the detention order.
Clause 70 provides that a detention order expires on the first of the
following to occur--
• at the end of its period of operation;
• on its revocation by a court under the Bill;
• on the commencement of another detention order or a
supervision order replacing it;
• on the deportation or removal of the offender from
Australia under the Migration Act 1958 of the
Commonwealth;
• on the death of the offender.
Clause 71 sets out the process for making an application for the renewal of
a detention order.
Clause 71(1) provides that at any time before the expiry of a
detention order, the DPP may apply to the Supreme Court for the
renewal of that order.
Clause 71(2) provides that an application for the renewal of a
detention order is commenced by filing a notice of application in
accordance with any rules of court and an assessment report or
progress report in respect of the offender.
Clause 71(3) sets out the materials that the DPP must serve on
the eligible offender and provides that those materials must be
served as soon as practicable after the application for the renewal
of the detention order is commenced.
Clause 71(4) requires an application for a renewal of a detention
order to be discontinued if the offender ceases to be an eligible
offender because the offender's conviction or finding of guilt in
respect of the serious sex offence or serious violence offence, by
44
reason of which the person is an eligible offender, is set aside,
or the custodial sentence is varied and a different sentence is
imposed such that the person is not an eligible offender.
Clause 71(5) clarifies that an application for the renewal of a
detention order may be made more than once.
Clause 71(6) clarifies that an application for the renewal of a
detention order may be made even if the offender is remanded
in custody or is serving a custodial sentence.
Clause 72 provides that the DPP may cause a progress report (the contents
of which are set out in clause 270) to be prepared in respect of
an eligible offender for the purposes of an application for the
renewal of a detention order.
Clause 73 deals with the determination of an application for the renewal of
a detention order.
Clause 73(1) provides that the Supreme Court may renew the
order, revoke the order, or make a supervision order, an interim
detention order or an interim supervision order, or make no order.
Clause 73(2) clarifies that an application for the renewal of
a detention order may be heard and determined even if the
detention order that is sought to be renewed has expired.
Clause 73(3) provides that clauses 62, 63 and 64 (which sets out
how a court may determine an application for a detention order)
apply to the determination of an application for renewal of a
detention order as if a reference to an application for a detention
order were a reference to an application for the renewal of a
detention order.
Clause 73(4) provides that if the Supreme Court renews a
detention order, the existing detention order, if any, is revoked
on the commencement of the renewed detention order.
Clause 73(5) provides that the period of a renewed detention
order is the period specified under clause 69(1), being a period
not exceeding 3 years as specified in the order.
Clause 74 clarifies that the Bill applies to a detention order that is renewed
the same way as it applies to any other order.
Clause 74(2) provides that the expiry of a detention order sought
to be renewed does not prevent the renewal of the detention
order.
45
Part 6--Interim detention orders
An interim detention order is a short-term order, not exceeding 4 months
except in exceptional circumstances. It is designed to provide a mechanism
to address the risk posed by an offender in the period between making an
application for a detention order or the renewal of a detention order, and the
hearing of that application.
Clause 75 sets out the process for making an application for an interim
detention order.
Clause 75(1) provides that the DPP may apply to the Supreme
Court for an interim detention order in respect of an offender
who is the subject of an application for a detention order under
clause 61 or the renewal of a detention order under clause 71.
Clauses 75(2) and 75(3) provide that the application must be
commenced by filing a notice of application in accordance with
any rules of the court, and prescribe that specified material must
be served on the offender as soon as practicable after the
application is commenced.
Clause 75(4) clarifies that an application under subclause (1) may
be commenced at the same time as an application under clause 61
or 71.
Clause 75(5) provides that an application under subclause (1)
must be discontinued if the offender ceases to be an eligible
offender because the offender's conviction or finding of guilt in
respect of the serious sex offence or serious violence offence, by
reason of which the person is an eligible offender, is set aside,
or the custodial sentence is varied and a different sentence is
imposed such that the person is not an eligible offender.
Clause 75(6) clarifies that an application for an interim detention
order may be made more than once in respect of an eligible
offender.
Clause 76 deals with the determination of an application for an interim
detention order.
Clause 76(1) provides that on an application under clause 75,
the Supreme Court may only make an interim detention order in
respect of an eligible offender if--
46
• the court is satisfied that--
• an application has been made for a detention
order under clause 61 or the renewal of a
detention order under clause 71, but that
application has not been determined; and
• either the offender is no longer, or will not be,
remanded in custody or serving a custodial
sentence when the application under clause 61
is determined, or the previous detention order
has expired or will have expired before the
application under clause 71 is determined; and
• it appears to the Court that the documents in support of
the application under clause 61 or 71 would, if proved,
justify the making or renewal of a detention order; and
• the court is satisfied that it is in the public interest to
make an interim detention order.
This standard of proof is a lower threshold in comparison to
making a detention order. This standard is similar to the standard
that judges are accustomed to applying in respect to interlocutory
injunctions, when orders are made quickly and without a full trial
of fact.
Clause 76(2) provides that on an application under clause 75, the
Supreme Court may make an interim supervision order if--
• the court is satisfied that an application has been made
for a detention order under clause 61 or the renewal of a
detention order under clause 71, but that application has
not been determined; and
• the court considers that an interim detention order is not
justified; and
• it appears to the court that the documents in support of
the application under clause 75 would, if proved, justify
the making of an interim supervision order; and
• the court is satisfied that it is in the public interest to
make an interim supervision order.
This clause means there is no need for applications for both an
interim detention order and an interim supervision order to be
made together in order to provide the court with both options.
47
Clause 76(3) clarifies that in considering whether the making of
the interim detention order or interim supervision order is in the
public interest under subclauses (1) and (2), the court must have
regard to the reason why the application under clause 61 or 71
was not, or will not be, determined before the offender is released
from custody or before the expiry of the previous detention order,
as the case requires, and any other matter the court considers
appropriate.
Clause 76(4) clarifies that the Supreme Court, even if
satisfied as required under subclause (1), may make no order
in circumstances where it is empowered to make an interim
detention order or an interim supervision order under this clause.
This clarifies that the making of an interim detention order or an
interim supervision order is a discretionary power, and the court
is not obliged to make such an order even if the criteria for the
making of an order is satisfied.
Clause 76(5) clarifies that the Supreme Court may determine
an application under clause 75 even if the offender has ceased to
be an eligible offender because the custodial sentence has been
served or has expired or the supervision order or detention order
to which the offender was subject has expired.
Clause 77 sets out the content of an interim detention order.
Clause 77(1) requires the interim detention order to state that
the Supreme Court is satisfied that the making of the order is
justified and it is in the public interest to make the order.
Clause 77(2) lists a number of other matters that the interim
detention order must specify, such as the name of the offender
and the period of the order.
Clause 77(3) requires the interim detention order to be signed by
the judge constituting the court that made it and include the name
of the judge.
Clause 78 provides that the effect of an interim detention order is to
commit the offender to detention in a prison for the period of the
order. Clause 255 clarifies that an offender subject to an interim
detention order must be treated in a way that is appropriate to the
offender's status as an unconvicted prisoner, subject to certain
exceptions.
48
Clause 79 requires the DPP to give a copy of an interim detention order to
the Secretary, Authority and, in some circumstances, the Adult
Parole Board.
Clause 79(1) provides that as soon as practicable after the
making of the order, the DPP must give a copy of the order to
the Secretary, the Authority and, if the offender is serving a
custodial sentence when the order is made, the Adult Parole
Board.
Clause 79(2) requires the DPP to give a copy of the order to
the Adult Parole Board, as soon as practicable, if the offender
commences serving a custodial sentence before the expiry or
revocation of the interim detention order.
Clause 80 sets out when an interim detention order commences.
Clause 80(1) provides that, subject to subclause (2), an interim
detention order commences--
• if the offender is serving a custodial sentence when the
interim detention order is made, on the day the offender
completes the custodial sentence or any consecutive or
concurrent custodial sentence, whichever is the later; or
• if the offender is remanded in custody when the
interim detention order is made, on the day on which
the offender is released from custody; or
• if the offender is in immigration detention when the
interim detention order is made, on the day on which the
offender is released from immigration detention; or
• in any other case, on the date specified in the interim
detention order.
Clause 80(2) provides that if an offender is the subject of an
application for the renewal of a detention order, an interim
detention order commences on the expiry of the previous
detention order (if still in force), or on the date specified in the
interim detention order.
Clause 81 sets out the period for which an interim detention order operates.
Clause 81(1) provides that, subject to subclause (2) and
clause 82, the period of an interim detention order is a period
not exceeding 4 months specified by the Supreme Court in the
order.
49
This limitation reflects the intention that an interim detention
order is designed to provide a mechanism to address the
risk posed by an offender in the period between making an
application for a detention order or the renewal of a detention
order, and the determination of that application. An interim
detention order is not intended to address risk on a long-term
basis.
Clause 81(2) provides that if the Supreme Court considers
that exceptional circumstances exist, the court may specify a
period exceeding 4 months. This acknowledges that in some
circumstances, it may not, for example, be practicable to have
an application for a detention order or the renewal of a detention
order heard and determined within 4 months of an interim
detention order being made.
Clause 81(3) provides that any time spent in custody on remand
or serving a custodial sentence during the period of an interim
detention order that has commenced counts in calculating the
period of the interim detention order.
Clause 81(4) provides that any time spent in immigration
detention during the period of an interim detention order that
has commenced does not count in calculating the period of the
interim detention order.
Clause 82 provides than an interim detention order expires on the first of
the following to occur--
• at the end of its period of operation, including any
extension of that period;
• on the determination of the application for a detention
order or the renewal of a detention order in relation to
which the interim detention order was made;
• on the deportation or removal of the offender from
Australia under the Migration Act 1958 of the
Commonwealth;
• on the death of the offender.
50
Clause 83 sets out the process for an application to extend an interim
detention order.
Clause 83(1) provides that at any time before the expiry of an
interim detention order, the DPP may apply to the Supreme Court
to extend the order.
Clauses 83(2), (3) and (4) provide that an application must be
commenced by filing a notice of application in accordance with
any rules of the court, prescribe that specified material must be
served on the offender as soon as practicable after the application
is commenced, and clarify that this service may be by post.
Clause 83(5) provides that despite subclauses (2), (3) and (4), an
application to extend an interim detention order may be made by
oral submission at a directions hearing under clause 126.
Clause 83(6) requires an application to extend an interim
detention order to be discontinued if the interim detention order
has already expired, or the offender ceases to be an eligible
offender because the offender's conviction or finding of guilt in
respect of the serious sex offence or serious violence offence, by
reason of which the person is an eligible offender, is set aside, or
the custodial sentence is varied and a different sentence is
imposed such that the person is not an eligible offender.
Clause 83(7) clarifies that an application to extend an interim
detention order may be made more than once in respect of an
eligible offender.
Clause 84 deals with the determination of an application to extend an
interim detention order.
Clause 84(1) provides that on an application under clause 83,
the Supreme Court may extend the interim detention order for a
specified period (subject to subclause 81(2)), revoke the interim
detention order or make no order.
Clause 84(2) provides that clause 83, which sets out the process
for an application to extend an interim detention order, applies
as if a reference to an application for an interim detention order
were a reference to an application to extend an interim detention
order, and a reference to making an interim detention order was a
reference to extending an interim detention order.
51
Clause 85 sets out the content of an order extending an interim detention
order.
Clause 85(1) requires the order to state that the Supreme Court is
satisfied that the making of the order is justified and it is in the
public interest to make the order.
Clause 85(2) lists a number of other matters that the order must
specify, such as the name of the offender and the period for
which the interim detention order is extended.
Clause 85(3) requires the order to be signed by the judge
constituting the court that made it and include the name of the
judge.
Clause 86 sets out the requirements for the DPP to give a copy of an
order extending an interim detention order to the Secretary, the
Authority and the Adult Parole Board if the offender is serving a
custodial sentence.
Part 7--Emergency detention orders
The introduction of emergency detention orders is based on
Recommendation 9 of the Harper Review. The Harper Review
recommended that post-sentence supervision and management should
include arrangements for the detection of escalating risk and a mechanism
for appropriate management intervention. Emergency detention orders are
such a legislative mechanism. This Part provides the court with power, in
certain circumstances, to make an order for the short term detention of an
offender in prison. This is intended to provide time to contain an offender's
imminent risk, allow for a threat or risk assessment to be conducted with a
view to obtaining a report and to reviewing the existing management plan.
It is also intended to provide time to make different arrangements to enable
the offender to be supervised in accordance with the conditions of their
existing order suitable to the offender's risk, to make an application to the
court for a review of the conditions of the order, or, in extreme cases, to
make an application to the court for a detention order.
Clause 87 sets out when an application for an emergency detention order
may be made and the process for making an application.
Clause 87(1) provides that the Secretary may apply to the
Supreme Court for an emergency detention order in respect of an
offender subject to a supervision order or interim supervision
order.
52
This power lies with the Secretary, as the Secretary is best placed
to quickly respond to any changes in an offender's circumstances.
An application can only be made to the Supreme Court, reflecting
the gravity of the impact of such an order on an offender.
Clause 87(2) outlines how an application under clause 87(1) is
commenced. It provides that the Secretary must file a notice of
application in accordance with any rules of court, an assessment
report or the latest progress report in respect of the offender, and
an affidavit which sets out--
• the altered circumstances that constitute the grounds for
the application; and
• the reason why, because of the altered circumstances,
the offender poses an imminent risk of committing a
serious sex offence or serious violence offence or both
if an emergency detention order is not made; and
• the reason why there are no available and practicable
means, other than an emergency detention order, to
ensure that the offender does not pose an imminent risk
of committing a serious sex offence or serious violence
offence or both.
Clause 87(3) sets out the materials that the Secretary must
serve on the offender and provides that those materials must
be served as soon as practicable after the application for
the emergency detention order is commenced, subject to
subclause (4). The timing that is considered to be as soon as
practicable should be determined in the context of the broader
proceeding. For example, it would not be deemed practical for
service of the application to take place until a determination is
made about whether to hear the application in the offender's
absence.
Clause 87(4) provides that the Secretary is not required to
serve the application (that comprises the filed materials under
subclause (3)) on the offender if the Supreme Court orders under
clause 88 that the application be heard and determined ex parte.
This is necessary to provide for circumstances where the service
requirements are not possible or practicable, for example, where
the offender has absconded.
53
Clause 88 allows for ex parte hearings of emergency detention orders.
This reflects the urgent nature of applications for emergency
detention orders and the need to respond quickly to any
imminent risk of harm to the community. The Supreme Court
has discretion, however, to determine whether an ex parte hearing
is appropriate in the circumstances. An ex-parte hearing may be
appropriate, for example, if requiring the offender's attendance
would delay the hearing, such as if the offender has absconded.
Clause 89 deals with determinations of applications for emergency
detention orders.
Clause 89(1) outlines the test for the making of an emergency
detention order. It provides that the Supreme Court may make
the order if it appears to the Court that the matters alleged in the
Secretary's application would, if proved, establish that because of
the altered circumstances, the offender poses an imminent risk of
committing a serious sex offence or serious violence offence or
both if the emergency detention order is not made. The test is
based in part upon the formulation of an equivalent power in
section 18CB of the Crime (High Risk Offenders) Act 2006 of
New South Wales. This standard reflects the urgent nature of
emergency detention orders. It is similar to the standard that
judges are accustomed to applying on applications for
interlocutory injunctions, when orders are made quickly and
without a full trial of fact. The requirement that the risk be
"imminent" reflects the emergency and temporary nature of
emergency detention orders. The Supreme Court will be required
to have regard to the circumstances that formed the basis for a
court's decision that the offender poses an unacceptable risk
when imposing a supervision order or interim supervision order.
The Supreme Court will then be required to have regard to
how those circumstances have altered so that now there is an
additional element to the offender's risk - an imminent risk that
the offender will commit a specified offence if an emergency
detention order is not made.
Clause 89(2) provides that when determining whether or not to
make an emergency detention order, the Supreme Court must
have regard to any assessment report or progress report filed in
relation to the application, any other report made, or evidence
given, in relation to the application and any other matter the court
considers appropriate.
54
Clause 89(3) provides that in determining whether or not to
make an emergency detention order the Supreme Court may have
regard to the means of managing the imminent risk referred to in
subclause 89(1) and the likely impact of an emergency detention
order on the offender.
Clause 89(4) provides that the Supreme Court may make no
order in circumstances where it is empowered to make an
emergency detention order under this section. This clarifies that
the power to make an emergency detention order is discretionary
and that the Supreme Court is not obliged to make an emergency
detention order even if the criteria for the making of an order is
satisfied.
Clause 89(5) provides that only one emergency detention
order can be made in respect of the same occasion of change in
circumstances.
Clause 90 outlines the matters the Supreme Court is required to include in
an emergency detention order.
Clause 90(1) provides that the order must state that it appears
to the Supreme Court that the matters alleged in support of the
application would, if proven, establish that because of the
altered circumstances, the offender poses an imminent risk of
committing a serious sex offence or serious violence offence or
both if the emergency detention order is not made.
Clause 90(2) lists a number of other matters that the emergency
detention order must specify, being the name of the offender and
the period of the order.
Clause 90(3) provides that the order must be signed by the judge
constituting the court that made the order and include the name of
the judge.
Clause 91 requires the Secretary to serve certain materials on the offender
and the Authority as soon as practicable after the making of the
emergency detention order. Specifically--
• if an emergency detention order is made in the absence
of the offender, the Secretary must serve on the offender
as soon as practicable a copy of the order, a copy of
the record of reasons for the making of the order and a
statement in the prescribed form of the offender's rights
of appeal or review. This applies despite the making of
55
an order restricting publication of an offender's identity
under clause 279; and
• in all cases, the Secretary must provide the Authority
with a copy of the order as soon as practicable after it is
made.
Clause 92 provides that an emergency detention order commences on the
date it is made, or if there is another date specified in the order,
on that date.
Clause 93 sets out the period for which an emergency detention order
operates.
Clause 93(1) provides that the period of the order, which is
specified by the Supreme Court in the order, cannot exceed 168
hours.
Clause 93(2) provides that the period specified in the order
must be the time that the Supreme Court believes is reasonably
required to enable any one or more of the following actions to be
taken under this Bill--
• action to ensure that the offender is adequately
supervised under the supervision order or interim
supervision order to which the offender is subject;
• an application for a detention order and an interim
detention order;
• any other action under the Bill.
Clause 94 provides that the effect of an emergency detention order is
to commit the offender to detention in a prison for the period
specified in the order. Clause 255 clarifies that an offender
subject to an emergency detention order must be treated in a
way that is appropriate to the offender's status as an unconvicted
prisoner, subject to certain exceptions.
Clause 95 provides that the Supreme Court may issue, in accordance with
the Magistrates' Court Act 1989, a warrant to detain in prison
an offender who is the subject of an emergency detention order
who was not present at the hearing of the application for the
order or is not in custody.
56
Clause 96 sets out the scope of authority in a warrant to detain, which--
• authorises a person to whom it is directed to break, enter
and search any place the person named in the warrant is
suspected to be; and
• directs and authorises the person to whom it is directed
to take and safely convey the person named in the
warrant to a prison; and
• directs and authorises the Secretary or any other person
into whose custody the person named in the warrant is
transferred to receive that person into custody and safely
keep that person--
• for the period specified, or in the circumstances
described in the warrant; or
• until that person is otherwise removed or
discharged from custody by due course of law.
Part 8--Review of orders and conditions
Part 8 governs how reviews of orders and conditions under the Bill are to be
conducted.
Clause 97 outlines how an application under this Part is commenced.
Clause 97(1) provides that an application is commenced by
filing a notice of application in accordance with the rules of
court, if any, and the documents specified in this Part.
Clause 97(2) requires the Secretary or the DPP (as the
case requires), as soon as practicable after an application is
commenced, to serve on the offender copies of certain materials
specified in this subclause.
Clause 98 requires the Secretary or the DPP (as the case requires) to cause a
progress report to be prepared for an application under this Part.
Clause 99 provides for periodic review of supervision orders.
Clause 99(1) requires the Secretary to apply to the court that
made a supervision order for review of that order no later than
3 years after it was first made, or any earlier first review date
specified in the order and, subsequently, at intervals of not more
than 3 years, or any shorter intervals specified in the order.
57
Clause 99(2) clarifies that an application is not required to be
made under this clause if a detention order has subsequently been
made in respect of the offender.
Clause 99(3) clarifies that an application is not required to be
made under this clause if, at the time for review, an application
has been made under clause 22 to renew the supervision order
and that application has not been withdrawn.
Clause 99(4) provides that when reviewing a supervision order
under this Part, the court must at the same time review any
order made under clause 279 (which concerns orders relating
to non-publication), to determine whether such orders should
continue having regard to the matters specified in clause 280.
Clause100 provides for the periodic review of detention orders.
Clause 100(1) requires the DPP to apply for review of a detention
order not later than one year after it was first made or any earlier
first review date specified in the order and, subsequently, at
intervals of not more than one year or any shorter intervals
specified in the order. The shorter mandatory review period, as
compared with a supervision order, reflects the severe impact of a
detention order on an offender.
Clause 100(2) clarifies that an application is not required to be
made under this clause if, at the time for review of the detention
order, an application has been made under clause 71 to renew the
detention order and that application has not been withdrawn.
Clause 101 provides that clauses 99 and 100 do not apply if the offender is
serving a custodial sentence or is remanded in custody when the
time for review occurs.
Clause 102 allows for applications for leave to review an order outside of
the periodic review timelines. This provides flexibility to ensure
that orders and the conditions imposed on the orders remain
proportionate, adequate and responsive to any change in facts or
circumstances.
Clause 102(1) provides that the Secretary (either on the
Secretary's own motion or on the recommendation of the
Authority), the DPP or the offender subject to the order, may
apply for review of the order at any time. The application is
made to the court that made the supervision order.
58
Clause 102(2) provides that the DPP or the offender subject
to the order may apply for review of a detention order.
The application is made to the Supreme Court.
Clause 102(3) provides that the court can grant the leave sought
if it is satisfied that--
• there are new facts or circumstances which would
justify a review of the order; or
• it would be in the interests of justice to review the
order, having regard to the purposes of the order and
the manner and effect of its implementation.
Clause 103 provides that an application for review of a supervision order or
detention order must set out the nature of the order sought and
must be accompanied by a progress report.
Clause 104 outlines the purpose of a review, which is to determine--
• whether the supervision order or detention order should
continue or be revoked;
• if a supervision order is revoked, whether the order
should be replaced with a different supervision order or
a detention order; and
• if a detention order is revoked, whether it should be
replaced with a supervision order.
Clause 105 outlines the matters to be considered by the court on a review.
Clause 105(1) requires the court, in reviewing a supervision order
or a detention order to consider--
• a progress report relating to the offender; and
• any other report made, or evidence given by a medical
expert; and
• any report made by the Secretary, the DPP or the
Authority; and
• any submissions made by the parties to the review.
59
Clause 105(2) provides that the Court, in reviewing a supervision
order or a detention order, may also consider--
• any previous assessment report or progress report filed
with the court in relation to the offender; and
• anything else the court considers appropriate.
Clause 106 relates to the decision on review of a supervision order.
Clause 106(1) provides that, subject to clause 107, the court
must revoke the supervision order unless it is satisfied that the
offender either still poses or, after release from custody will pose,
an unacceptable risk of committing a serious sex offence or a
serious violence offence or both if the supervision order is not
in effect and the offender is in the community.
Clause 106(2) clarifies that an order can be made under this
section even if the offender is serving a custodial sentence or is
remanded in custody.
Clause 106(3) provides that clauses 14(2)(b),(3),(4) and (5)
(with any necessary modifications) apply to the review of a
supervision order. That is--
• in determining whether an offender poses an
unacceptable risk, the court must not have regard to
the means of managing the risk or the likely impact
of a supervision order on the offender;
• for the purposes of making a determination, the court
must be satisfied by acceptable, cogent evidence to a
high degree of probability that the offender poses an
unacceptable risk;
• the court may determine that an offender poses an
unacceptable risk even if the likelihood that the offender
will commit a serious sex offence or a serious violence
offence or both is not more likely than not; and
• the Secretary has the burden of proving that an offender
poses or will pose an unacceptable risk.
Clause 106(4) requires the court, subject to subclauses (5)
and (6), to confirm the supervision order unless the court has
revoked the supervision order or an application for a detention
order has been made under clause 107.
60
Clause 106 (5) provides that if the court confirms a supervision
order it may vary, add or remove any condition of the order or
vary the maximum intervals between applications for review.
Clause 106(6) requires the court, if it exercises a power under
subclause (5) in respect of a supervision order, to ensure that the
conditions of the order satisfy the requirements of clause 15 and
Division 3 of Part 3, and make any variations and additions to the
conditions that are necessary for this purpose.
Clause 106(7) provides that Divisions 3 and 4 of Part 3
(Conditions of supervision order and Restrictive conditions and
temporary conditions) apply to any variation to or addition of a
condition of a supervision order under subclauses (5) and (6).
Clause 107 provides that applications for a detention order and interim
detention order may be made during the review of a supervision
order.
Clause 107(1) provides that the DPP may apply to the Supreme
Court for a detention order during a supervision order review if
the court or the DPP considers that a detention order should be
made.
Clause 107(2) provides that clauses 62, 63, 64, 65, 66 and 67
apply to an application for a detention order under this clause as
for an application for a detention order under clause 61.
Clause 107(3) provides that if making an application for a
detention order under subclause (1), the DPP may also apply to
the Supreme Court for an interim detention order.
Clause 107(4) provides that clauses 76, 77, 78 and 79 apply to an
application for an interim detention under subclause (3) as for an
application under clause 75 (Application for interim detention
order).
Clause 107(5) requires the Supreme Court, if it makes a detention
order under this clause, to revoke the supervision order.
Clause 107(6) provides that if an application is made under this
clause and the Supreme Court does not make a detention order,
the Court may confirm or revoke the supervision order.
Clause 107(7) clarifies that the supervision order remains in force
until the Supreme Court determines the application under this
clause.
61
Clause 108 governs applications for reviews of detention orders.
Clause 108(1) requires the Supreme Court, on review of a
detention order, to revoke the order unless it is satisfied that the
offender still poses, or after release from custody will pose, an
unacceptable risk of committing a serious sex offence or a
serious violence offence or both if a detention order is not in
effect and the offender is in the community.
Clause 108(2) provides that the Court can make an order under
this clause even if the offender is serving a custodial sentence or
is remanded in custody.
Clause 108(3) provides that clauses 62, 63 and 64 (Determination
of application for detention order, Finding of unacceptable risk
and Detention order only option), with any necessary
modifications, apply to a review of a detention order.
Clause 108(4) provides that if the Supreme Court is not satisfied
that the risk would be unacceptable unless a detention order is
made, the Supreme Court can revoke the detention order and
make a supervision order.
Clause 108(5) provides that Part 3 (with any necessary
modifications) applies to the making of a supervision order
under this clause.
Clause 109 clarifies how a custodial order affects the time for review of a
supervision order or a detention order.
Clause 109(1) provides that this clause applies if an offender on a
supervision order or detention order is serving a custodial
sentence or is on remand in prison, a police goal or a designated
mental health service.
Clause 109(2) provides that if the time for review occurs while
the offender is in custody serving a custodial sentence, the
application for review may be made at any time before the
release of the offender from custody, or as soon as practicable
after the offender is released on parole or from remand.
Clause 109(3) provides that if parole is not granted or the
offender is ordered to serve a custodial sentence, and a
supervision order or detention order applies to an offender at the
end of the custodial sentence the application for review may be
made, at any time before the end of the custodial sentence, or as
soon as practicable after the end of the custodial sentence.
62
Clause 109(4) provides that if the order will expire during the
period of the custodial sentence or while the offender is
remanded, no review is required. In this case, an application to
renew the order could be made.
Clause 110 governs applications for review of conditions of a supervision
order or interim supervision order.
Clause 110(1) provides that the Secretary or the offender can,
with the leave of the court that made the order, apply for a review
of a condition of a supervision order or interim supervision order
(other than a core condition) at any time.
Clause 110(2) provides that the application can be accompanied
by a certificate or available resources or a progress report or both.
A certificate of available resources states whether or not there are
facilities or services available for the accommodation, care,
monitoring, rehabilitation or treatment of the offender. The
certificate of available resources will apprise the court of any
resourcing limitations known to the Secretary in relation to the
conditions.
Clause 110(3) provides that the court can grant leave under this
section if it is satisfied that--
• new facts or circumstances have arisen since the
conditions were made that justify the review; or
• it would be in the interests of justice to review the
conditions, having regard to the purposes of the
conditions and the manner or effect of their
implementation.
This power to grant leave is discretionary.
Clause 110(4) provides that before determining whether to grant
leave, the court may request a further certificate of available
resources from the Secretary.
Clause 110(5) provides that the court must have regard to a
certificate of available resources in considering the matters under
subclause (3).
63
Clause 111 outlines the powers of the court on a review of conditions.
Clause 111(1) provides that if the court grants leave for an
application under clause 110, it must grant the offender, the
Authority and the Secretary the opportunity to be heard in respect
of the application.
Clause 111(2) requires the court to consider any submissions
made under subclause (1) and any certificate of available
resources.
Clause 111(3) provides that on a review of conditions under this
clause, the court may--
• vary, add or remove any conditions of the order;
• confirm the conditions of the order; or
• review the supervision order in accordance with this
Part.
Clause 111(4) provides that if the court exercises any of the
powers in subclause (3), it must ensure that the conditions of the
order satisfy the requirements of clause 15 and Division 3 of
Part 3, and must make any variations or additions to the
conditions necessary for this purpose.
Clause 111(5) provides that Divisions 3 and 4 of Part 3
("conditions of supervision order" and "restrictive conditions and
temporary conditions") apply to the addition or variation of a
condition under this clause.
Clause 112 provides that in certain circumstances, leave is not required for
review of core conditions.
Clause 112(1) provides that, despite anything to the contrary
under clause 102, an application for review of a supervision order
under clause 102(1) may be made without first obtaining leave
under that section if the application is made on the ground that
amendments to clause 31 which alter the core conditions to
which the supervision order is subject have come into operation
since the supervision order was made or last renewed or
reviewed.
64
Clause 112(2) outlines the powers of the court on an application
under subclause (1). It provides that the court--
• must make any variation or additions to the core
conditions of the order to ensure that they accord with
clause 31; and
• may deal with any other matter that could be the subject
of an application under clause 102 if it is satisfied that
there are new facts and circumstances which justify a
review of the order, or if it is satisfied that it would be in
the interests of justice to review the order, having regard
to the purposes of the order and the manner and effect
of its implementation.
Clause 113 governs applications for reviews of the intensive treatment and
supervision condition.
Clause 113(1) requires the Secretary to apply to the court that
made the supervision order for a review of the condition no later
than 12 months after the condition is imposed and thereafter at
12 monthly intervals during the period of the condition.
Clause 113(2) provides that an application under subclause (1)
must be accompanied by the treatment and supervision plan for
the offender and an assessment report or the latest progress
report, if any.
Clause 113(3) provides that this section does not limit clause 102.
Clause 113(4) provides that an application is not required to be
made under this clause if at the time for review of an intensive
treatment and supervision condition -
• the Secretary has applied under clause 43 to extend the
intensive treatment and supervision condition; or
• the Secretary has applied under clause 99 to review the
supervision order on which the intensive treatment and
supervision condition was imposed; or
• the Secretary has applied under clause 110 to review the
conditions of the relevant supervision order.
65
Clause 114 governs determinations of applications for reviews of intensive
treatment and supervision conditions.
Clause 114(1) requires the court to revoke the intensive treatment
and supervision condition unless it is satisfied that--
• the condition is necessary to reduce the risk of the
offender committing a serious sex offence or serious
violence offence or both; and
• the risk cannot be reduced by a less restrictive means of
supervision.
Clause 114(2) outlines the matters the court must have regard to
in making a determination under this clause--
• whether the treatment and services referred to in the
treatment and supervision plan have been offered to the
offender; and
• the offender's engagement with or participation in those
treatments and services; and
• whether any changes are required to the treatment and
supervision plan.
Clause 114(3) provides that if the court is satisfied as required by
subclause (1) it may--
• confirm the condition; or
• if the court is satisfied that exceptional circumstances
exist, extend the condition for a specified period, that
does not exceed 12 months.
Part 9--Appeals
Division 1--Appeals relating to orders made under
Part 3, 4, 5, 6, 7 or 8
Division 1 applies to appeals relating to orders made under Parts 3, 4, 5, 6,
7 or 8.
Clause 115 deals with appeals by the offender.
Clause 115(1) provides that an offender who is subject to a
supervision order, interim supervision order, detention order or
interim detention order may appeal to the Court of Appeal
66
against a decision made by a court under the Bill and sets out the
types of decisions that the offender may appeal against.
Clause 115(2) provides that an offender subject to an emergency
detention order may appeal to the Court of Appeal against a
decision made by the Supreme Court to make the order or to
specify a particular period of operation of the order.
Clause 116 deals with appeals by the Secretary. It provides that if the
Secretary considers it is in the public interest to do so, the
Secretary may appeal to the Court of Appeal against a decision
made by a court under the Bill. The clause also sets out the types
of decisions the Secretary may appeal against.
Clause 117 deals with appeals by the DPP. It provides that if the DPP
considers that it is in the public interest to do so, the DPP may
appeal to the Court of Appeal against a decision made by the
Supreme Court under the Bill. The clause also sets out the types
of decisions that the DPP may appeal against.
Clause 118 outlines how an appeal is commenced.
Clause 118(1) provides that an appeal is commenced by filing, in
accordance with the rules of the court, if any, a notice of appeal
setting out the grounds of appeal. The notice must be filed within
28 days after the day in which the decision was made or any
extension of that period granted under subclause (2).
Clause 118(2) provides that the Court of Appeal can extend the
time within which a notice of appeal may be filed, if it considers
that it is in the interests of justice to do so.
Clause 118(3) provides that as soon as practicable after filing a
notice of appeal, the appellant must serve a copy of the notice on
the respondent to the appeal.
Clause 118(4) provides that if the appellant is the Secretary or the
DPP, the document served under subclause (3) must be
accompanied by a notice in the prescribed form (if any) which
sets out the offender's rights in relation to the appeal and the
procedure for the appeal.
Clause 118(5) provides that the filing of a notice of appeal under
subclause (1) does not operate as a stay of the decision unless the
court that made the decision or the Court of Appeal orders
otherwise.
67
Clause 119 provides that clauses 125, 126, 127, 128, 129, 130, 131, 132
and 133 (with any necessary modifications) apply to the hearing
of an appeal under this Division.
Clause 119(2) provides that in considering an appeal under this
Part, the Court of Appeal may consider new evidence that is
relevant to the application and may direct the Secretary to
provide a new assessment report or progress report.
Clause 120 deals with determinations of an appeal against a decision to not
make an emergency detention order.
Clause 120(1) provides that on an appeal under clause 116(f), the
Court of Appeal must allow the appeal if the appellant satisfies
the court that there is an error in the decision not to make an
emergency detention order, and that an emergency detention
order should have been made. In any other case, the Court of
Appeal must dismiss the appeal.
Clause 120(3) provides that if it allows the appeal, the Court of
Appeal has power either to make an emergency detention order
and any other order it considers appropriate in respect of the
offender or remit the matter to the Supreme Court under
clause 121(1)(l). The Court of appeal may make an emergency
detention order and any other appropriate orders on appeal even
if the offender has ceased to be an eligible offender because the
relevant supervision order or interim supervision order has
expired.
Clause 121 outlines the powers of the Court of Appeal on an appeal under
this Division.
Clause 121(1) provides that the Court of Appeal can make any
order it considers appropriate, and lists the types of orders this
may include.
Clause 121(2) clarifies that if the Court of Appeal sets aside a
decision and remits a matter back to a court, the court to which
the matter is remitted can make or renew a supervision order or
interim detention order even if--
• the offender has ceased to be an eligible offender
because the custodial sentence has been served or
expired; or
• the order which is to be renewed or extended has
expired.
68
Clause 121(3) provides that subclause (2) does not apply to a
decision to make or not make an emergency detention order or an
offender who has ceased to be an eligible offender by reason of
clause 8(4).
Clause 121(4) provides that when the Court of Appeal remits a
matter back to a court, it may include a direction as to whether
the court should be constituted by the judge who made the
decision appealed.
Clause 121(5) provides that if the Court of Appeal sets aside a
decision to make or not to make an emergency detention order
and remits a matter to the Supreme Court, the Supreme Court
may make the emergency detention order even if the offender has
ceased to be an eligible offender because the relevant supervision
order or interim supervision order has expired.
Clause 122 allows the Court of Appeal to make an interim supervision order
or an interim detention order.
Clause 122(1) provides that on setting aside a decision and
remitting a decision back to a court, the Court of Appeal may,
subject to subclause (2), make an interim supervision order or
interim detention order if it is satisfied that the making of the
order is justified and it is in the public interest to make the order.
Clause 122(2) provides that subclause (1) does not apply to a
decision to make or not make an emergency detention order.
Clause 122(3) provides that subject to this clause, this Bill
applies to an interim order made by the Court of Appeal as it
does to any other interim order.
Clause 122(4) provides that the period of an interim supervision
order or interim detention order made by the Court of Appeal
commences on the making of the order and ends when the matter
has been determined by the court below to which the matter has
been remitted.
69
Division 2--Appeals relating to publication of information
Division 2 applies to appeals against orders relating to publication of
information
Clause 123 governs appeals against orders relating to publication of
information.
Clauses 123(1) and (2) provide that any person affected by a
decision under Division 1 of Part 19 may appeal to the Court of
Appeal against the decision and that on an appeal under this
clause, the Court of Appeal can make any order that a court may
make under Division 1 of Part 19.
Part 10--Procedure relating to applications
Clause 124 provides that a court hearing an application under this Bill,
(other than Part 12), may exclude evidence from disclosure to
the offender if the court is satisfied that--
• it is in the public interest to do so;
• the material cannot be suitably redacted or
communicated to the offender in a way that would not
prejudice the public interest; and
• it would not lead to significant unfairness to the
offender.
The basis on which evidence can be excluded from disclosure are
closely tailored to avoid any denial of procedural fairness to the
offender, to the extent possible in considering competing public
interest considerations. In addition, the court ultimately retains
control over the exclusion of evidence from disclosure and its
ability to determine what weight to give the evidence, taking into
account the fact that the evidence could not be challenged by the
offender.
Clause 125 outlines the procedure to be followed in hearings of application
under the Bill.
Clause 125(1) provides that a court in which an application
under Part 3, 5 or 8 is commenced must not begin to hear the
application until--
70
• at least 25 working days have passed since it
commenced, or, if satisfied it is in the interests of
justice to do so, any shorter period; and
• the court is satisfied that the offender has had a
reasonable opportunity to obtain an independent
report of any kind.
Clause 125(2) provides that subclause (1) does not apply to a
directions hearing under clause 126.
Clause 125(3) provides that the Supreme Court may begin to hear
an application under Part 7 if the court is satisfied that it is in the
interests of justice to do so, and the offender has had a reasonable
opportunity to obtain an independent report of any kind and legal
representation.
Clause 125(4) provides that subclause (3)(b) does not apply to an
application under Part 7 if the Supreme Court has made an order
under clause 88 that the application is to be heard and determined
in the absence of the offender.
Clause 125(5) provides that a court hearing an application under
Part 3, 5, 7 or 8 can adjourn the hearing to give the offender the
opportunity to obtain legal representation or a report of any kind
or both.
Clause 125(6) provides that if an offender obtains an independent
report and intends to rely on it, he or she must, as soon as
practicable after obtaining it, file a copy in court and serve a
copy on the Secretary or the DPP (as the case requires).
Clause 125(7) provides that an offender may obtain more than
one independent report.
Clause 125(8) provides that a court that has adjourned a hearing
under subclause (3) can resume the hearing even if the offender
has not obtained an independent report or legal representation,
as long as the court is satisfied that the offender has had a
reasonable opportunity to do so.
Clause 125(9) provides that the court may, for the purpose of
assisting it to determine an application, direct the offender or the
Secretary or DPP (as the case requires) to obtain and file a report
of any kind, within a period specified by the court.
71
Clause 125(10) provides that a copy of a report referred to in
subclause (9) must be served on the other party as soon as
practicable after filing.
Clause 126 outlines the procedure for directions hearings under the Bill.
Clause 126(1) provides that a court may fix a date for a directions
hearing to be conducted in relation to a hearing of an application
under Part 3, 4, 5, 6 or 7.
Clause 126(2) empowers the court to give any directions it
considers necessary concerning the hearing of the application at
the directions hearing.
Clause 126(3) provides that subject to subclause (4), an offender
is entitled to be present at a directions hearing. This includes
being present by way of audio visual link or audio link in
accordance with the Evidence (Miscellaneous Provisions)
Act 1958.
Clause 126(4) provides that subclause (3) does not apply if the
court has determined that the application is to be heard and
determined in the absence of the offender.
Clause 127 empowers the court to order an offender to attend for personal
examination for the purpose of enabling an expert or other person
to make a report or give evidence to the court.
Clause 127(1) provides the court with this power in respect of
offenders who are the subject of an application under Part 3, 4, 5,
6, 7 or 8.
Clause 127(2) clarifies that nothing in this clause empowers the
court to make an order that would require an offender to submit
to physical examination, or actively cooperate in the carrying out
of a personal examination in any way. This is intended to protect
the offender's right to privacy and right to not be subjected to
medical experimentation or treatment without full, free and
informed consent.
Clause 128 provides for the attendance of the offender at hearings.
Clause 128(1) provides that subject to this clause and clause 88,
an offender who is the subject of an application under Part 3, 4,
5, 6, 7 or 8 must be present during the hearing of the application.
72
Clause 128(2) provides, however, that if an offender behaves in a
way that makes the offender's attendance at the hearing
impracticable, the court may order that the offender be removed
and that the hearing continue in the absence of the offender.
Clause 128(3) provides that if the offender is unable to attend the
hearing because of illness or any other reason, the court may
proceed in the absence of the offender, as long as the court is
satisfied that--
• doing so will not prejudice the interests of the offender;
and
• the interests of justice require that the hearing should
proceed in the absence of the offender.
Clause 129 provides for adjournment of hearings of applications under
Part 3, 4, 5, 6, 7 or 8. Clause 129(1) provides that a court hearing
an application under Part 3, 4, 5, 6, 7 or 8 may adjourn the
hearing to any time and place and for any purpose and on any
terms as to costs or otherwise that it considers necessary or just
in the circumstances.
Clause 129(2) provides that on an adjournment, the Bail
Act 1977 applies (with any necessary modifications) to an
offender being held in custody under clause 138 as if the offender
were accused of an offence and being held in custody in relation
to that offence.
Clause 130 provides that the offender is entitled to a reasonable opportunity
to obtain legal representation for a hearing under Part 3, 4, 5, 6,
7 or 8.
Clause 131 governs the admissibility of evidence under the Bill.
Clause 131(1) provides that subject to subclause (2) and
clauses 134 and 135, the rules of evidence apply to hearings
of applications under Part 3, 4, 5, 6, 7 or 8.
Clause 131(2) sets out the information that in hearing an
application under Part 3, 4, 5, 6, 7 or 8, the court may receive
in evidence.
73
Clause 132 provides that when hearing an application under Part 3, 4, 5, 6, 7
or 8, a court may have regard to--
• whether and to what extent the offender cooperated
in the preparation of an assessment report, including
an examination for the purposes of an additional
assessment under Part 18; and
• if the offender did not cooperate, or did not cooperate
fully, the reasons of the offender for not doing so; and
• whether an assessment report or progress report was
made without a personal examination of the offender.
Clause 133 requires the court, when it determines an application under
Part 3, 4, 5, 6, 7 or 8 to state the reasons for its determination,
have those reasons entered in the records of the court and cause
a copy of any order made to the provided to the Secretary or the
DPP (as the case requires) and the offender.
Clause 134 allows victims of an offender to make submissions in relation to
certain hearings under the Bill.
Clause 134(1) provides that this clause does not apply to
an application for an emergency detention order. It is not
anticipated that an emergency detention order would impact a
victim's interests in the same way as, for example, a condition of
a supervision order, because the order is temporary in nature and
is not intended to be a long term solution.
Clause 134(2) provides that a victim of the offender may make a
submission to the court in relation to an application under Part 3,
4, 5, 6 or 8. To facilitate this right, clause 134(3) requires the
Secretary or the DPP (as the case requires) to give notice of an
application under a Part listed in subclause (2) to each person
included on the victims register as a victim of the offender.
Clause 134(4) provides that the notice must specify the nature
of the application and the period within which the victim
submission can be made. The submission must be made within
the period specified in subclause (4).
74
Clause 134(6) provides that a victim submission must be in
writing, address matters about the person's views regarding any
conditions which should be included on a supervision order or
interim supervision order, and include matters prescribed by the
Bill or Regulations, if any.
Clause 134(7) defines the terms victim and victims register.
Clause 135 provides that victim submissions are not to be released to an
offender without the consent of the victim.
Clause 135(1) provides that a court cannot release a victim
submission to an offender unless--
• in the court's opinion, the release of the submission is
essential for the interests of fairness and justice; and
• before releasing the victim submission, the court has
asked that person who made the submission whether the
person--
• consents to the submissions being released to
the offender; or
• would like to amend the submission so that it
can be released to the offender; or
• wishes to withdraw the submission.
Clause 135(2) provides that if the person who made a
submission does not consent to any of the options outlined in
subclause (1)(b), then the court--
• must not release the victim submission to the
offender; and
• in considering the submission in relation to whether
to impose a condition on the order, may reduce the
weight it would otherwise have given to the
submission had it been released.
Clause 135(3) provides that despite subclauses (1) and (2), the
court can take reasonable steps to disclose to the offender or the
offender's legal representative the substance of the submission,
but only if the court is satisfied that those steps would not
reasonably lead to the identification of the person who made the
submission.
75
Clause 136 provides the court power to issue an arrest warrant in respect of
an offender.
Clause 136(1) provides that the Secretary or the DPP may apply
to the court hearing the application for the issue of a warrant to
arrest. The following subclauses provide for the circumstances in
which a warrant for arrest can be issued.
Clause 136(2) provides that, subject to subclause (4), the judge
may, in accordance with the Magistrates Court Act 1989, issue
a warrant to arrest an offender who fails to attend a hearing under
Part 3, 4, 5, 6, 7, 8 or 9 if satisfied that--
• a notice of hearing was served on the offender or
• there are reasonable grounds to believe that the offender
is evading service of the notice of the hearing.
Clause 136(3) provides that subject to subclause (4), the judge
may, in accordance with the Magistrates Court Act 1989,
issue a warrant to arrest an offender who is the subject of an
application under Part 3, 4, 5, 6, 7, 8 or 9, if satisfied that the
offender has absconded, or is otherwise unlikely to attend a
hearing under that Part.
Clause 136(4) provides that a judge of the Supreme Court cannot
issue a warrant under subclauses (2) or (3) if it has ordered under
clause 88 that an application for an emergency detention order is
to be heard and determined in the absence of the offender.
Clause 136(5) provides that, except as otherwise provided by the
Bill, the rules to be observed with respect to warrants to arrest
under the Magistrates' Court Act 1989 (except sections 62
and 64(2)), apply to warrants issued under this clause.
Clause 137 provides for the execution of warrants to arrest under clause 136.
Clauses 137(1) and (2) provide that a warrant to arrest under
clause 136 can be executed by any police officer, and that a
person executing such a warrant may use any reasonable force
that is necessary to enter any premises, vessel, aircraft or vehicle
for the purposes of executing the warrant.
Clause 137(3) provides that a person executing a warrant to arrest
issued under clause 136 may only use the reasonable force that is
necessary for the execution of the warrant.
76
Clause 137(4) excludes liability of a person executing a warrant
to arrest under clause 136 in relation to any injury or damage that
is caused by the use of force exercised in accordance with the
clause.
Clauses 137(5) and (6) impose notification requirements on the
person who executed the warrant and on the Chief Commissioner
of Police when force is used to execute a warrant under this
clause.
Clause 138 provides for an offender who is arrested under a warrant under
section 136 to be brought before a court. Clause 138(1) provides
that an offender arrested under a warrant issued under clause 136
must be brought before the court that issued the warrant as soon
as practicable.
Clause 138(2) outlines the options of the court when an arrested
offender is brought before it. It provides that the court may--
• grant the offender bail, with any security that the court
thinks fit and on any conditions that the court thinks fit,
for the purpose of ensuring the offender's attendance at
the hearing of the application;
• order the continued detention of the offender in police
custody for the purpose of ensuring the offender's
attendance at the hearing of the application until the
conclusion of the hearing; or
• if it is satisfied that there are reasonable grounds to
believe that it is necessary to prevent the offender from
escaping police custody, order that the offender be
detained in a prison or police gaol for the purpose of
ensuring the offender's attendance at the hearing of the
application until the conclusion of the hearing; or
• order the release of the offender.
Clause 138(3) provides that an offender detained under this
clause must be brought before the court within 14 days, or any
other period specified by the court, after the last appearance of
the offender before the court.
Clause 138(4) provides that if an offender detained under this
clause is to be detained overnight (except an offender detained
in accordance with subclause (2)(c), the Chief Commissioner of
Police must arrange for accommodation and meals to a standard
77
comparable to that generally provided to jurors kept together
overnight.
Clause 138(5) provides that if an offender is detained in a prison
under subclause (2)(c), the court may order that the offender be
delivered into the custody of a police officer to bring the offender
to court on the hearing of the application.
Part 11--Authority may give directions or instructions to
offenders on supervision orders or interim supervision orders
Clause 139 provides that in providing directions to offenders, the Authority
should aim to ensure that those directions--
• constitute the minimum interference with the offender's
liberty, privacy or freedom of movement that is
necessary to ensure the purposes of the conditions; and
• are reasonably related to the gravity of the risk of the
offender re-offending by way of committing a serious
sex offence, serious violence offence or both, or an
offence referred to in Schedule 3 or by any conduct
that threatens the safety of any person, including the
offender.
Clause 140 empowers the Authority to give directions to an offender in
accordance with any authorisation contained in the offender's
order.
Clause 141 provides that if the Authority gives a direction authorised by a
condition referred to in clause 36(4)(c) (authorising the Authority
to give a direction relating to the monitoring, including electronic
monitoring, of an offender's compliance with a direction that the
offender reside at the residential facility), then the Authority must
also direct that--
• the offender must comply with any direction given by
the Authority relating to electronic monitoring;
• the offender must be electronically monitored for
24 hours each day and wear an electronic monitoring
device fitted to the offender at the direction of the
Authority;
78
• the offender must not tamper with, damage, disable or
remove any electronic monitoring device or equipment;
• the offender must accept any visit by the Secretary to
the residential facility that is reasonably necessary for
any purpose, including to install, repair, fit or remove
any electronic monitoring device or equipment used for
the electronic monitoring of the offender's compliance
with the direction to reside at the residential facility.
Clause 142 Clause 142(1) gives the Authority an emergency power to give
directions to an offender to enable the offender to be managed
in a way that is not provided for in the conditions of the order,
which can include in a manner that is inconsistent with the
conditions of the order.
Clause 142(2) outlines when the Authority may exercise this
emergency power of direction. The Authority may provide such
a direction if--
• there is an imminent risk of harm to the offender or to
the community; or
• accommodation specified by the court as a condition of
the order becomes unavailable; and
• the Authority believes on reasonable grounds that due
to the urgency of the situation, it is not practicable for
an application for variation of the conditions of the
supervision order or interim supervision order to be
made to the court.
Clause 142(3) provides that the Authority cannot use its
emergency power to give a direction to reside at a residential
facility to an offender whom a court referred to in clause 8(1)(a)
has imposed a custodial sentence for a serious violence offence.
This limitation reflects existing arrangements under the Serious
Sex Offenders (Detention and Supervision) Act 2009 by
which only eligible sex offenders can be required to reside in a
residential facility. These facilities have been established to meet
the particular needs and risks of serious sex offenders, rather than
serious violence offenders.
79
Clause 142(4) provides that the Authority cannot exercise its
emergency power to direct an offender to reside at a residential
treatment facility. Only a court can compel an offender to reside
at a residential treatment facility.
Clause 142(5) provides that an emergency direction ceases
operation 72 hours after it is given.
Clause 142(6) provides that if the Authority gives a direction
under this clause, it must notify the Secretary of the direction
before it ceases to have effect.
Clause 143 provides that if the Authority gives a direction under clause 142
and believes that the management of the offender under that
direction should apply for more than 72 hours, the Authority can
recommend to the Secretary that an urgent application be made to
the court for a review of the conditions of the order.
Clause 144 imposes certain reporting obligations when a direction is given
pursuant to clause 142.
Clauses 144(2) and (3) requires the Secretary, within 5 working
days after the Authority initiates the use of the power, to report to
the court that made the order, setting out--
• details of the emergency situation; and
• an explanation as to why the offender could not be
managed during the emergency situation in a manner
consistent with the conditions of the order; and
• how the emergency power was exercised; and
• how the emergency situation was resolved.
Clause 145 empowers the Authority, in addition to giving directions, to give
any instructions to an offender that are--
• necessary to give effect to the conditions of or
directions under an order; and
• are consistent with the order.
Clause 146 requires the Authority to notify the offender of any directions or
instructions given to them. This notification should be given as
soon as practicable, and in a format that is easy to understand so
that the offender understands their obligations under the order.
80
Clause 147 provides that the offender can make written submissions to the
Authority about a direction relating to the offender. Submissions
must be made within 21 days after the notice of the direction is
given to the offender and the offender may request to attend a
meeting of the Authority to be heard in relation to the
submissions.
Clause 148 provides that if required by the Authority, an offender must
attend a meeting of the Authority for a purpose that relates to the
Authority giving the offender a direction or instruction.
Clause 148(2) provides that an offender who has requested to
attend a meeting of the Authority in accordance with clause 147
is entitled to be present at the part of the meeting during which
the Authority considers the submissions.
Clause 148(3) provides that when an offender attends a meeting
under this clause, the offender--
• must be given the opportunity to be heard in relation to
the direction;
• may ask the reasons for the direction; and
• may give a response to those reasons.
Clauses 148(4) and (5) provide that for the purposes of this
clause, an offender may be present by way of audio visual link or
audio link, and that--
• if the offender is present by audio visual link, the
Authority must be satisfied that both the place where its
meetings are held and the place where the offender is
are equipped with facilities that enable all the members
of the Authority to see and hear the offender, and enable
the offender to see and hear all the members of the
Authority attending the meeting;
• if the offender is present by audio link, the Authority
must be satisfied that both the place where its meetings
are held and the place where the offender is are
equipped with facilities that enable all the members of
the Authority to hear the offender, and enable the
offender to hear all the members of the Authority
attending the meeting.
81
Clause 148(6) provides that the Authority can hold a meeting of
a kind referred to in subclause (2) in the absence of the offender,
provided it is satisfied that the offender does not wish to be
present.
Clause 148(7) defines the terms audio link and audio visual link
for the purposes of this clause.
Clause 149 requires the Authority in making a decision in relation to a
direction, to consider any written submissions under clause 147
and any response by the offender at a meeting under clause 148,
and to confirm or vary the direction as soon as practicable.
Clause 150 requires the Authority to provide the offender with a statement
of reasons for its decision under clause 149 as soon as practicable
after making the decision.
Clause 150(2) requires the Authority, if requested by the
offender, to provide a statement of reasons for any other decision
made by the Authority in relation to the offender.
Clause 150(3) provides that any request under subclause (2) must
be made within 28 days after the decision is made.
Clause 150(4) provides that the Authority must give the
statement under subclause (2) as soon as practicable and within
15 working days after the request is received.
Clause 150(5) provides that a statement of reasons must set out
the reasons for the decision and the findings regarding material
questions of fact that formed the basis of the decision, referring
to the evidence or other material on which those findings were
based.
Clause 150(6) provides that the Authority does not need to
provide a statement of reasons under this clause if the Authority
has already given a written statement containing the matters
referred to in subclause (5) to the offender.
Clause 150(7) provides that the Authority is not required to give
a statement of reasons to an offender if the chairperson considers
that it is not in the public interest to do so having regard to the
nature of the evidence or information that would be disclosed by
providing the statement.
82
Clause 151 provides that with permission of the Authority, an offender can
inspect any document that contains evidence that the Authority
had relied on or intends to rely on in making a decision to give a
direction or instruction to the offender.
Clause 151(2) allows the Authority to refuse permission under
subclause (1) if the chairperson considers that it is not in the
public interest to permit the inspection of documents, having
regard to the nature of the evidence or information that would be
disclosed by inspection.
Clause 151(3) provides that the offender may not make a copy of
any document inspected under subclause (1) and must return the
document to the Authority within the time frame specified by the
Authority.
Clause 152 requires the Authority, if it grants permission under clause 151 to
an offender, to notify the Secretary within 7 working days after
granting the permission and set out the details of the permission
granted.
Clause 153 provides that a victim of the offender may make a submission to
the Authority for its consideration in determining any direction it
may give to an offender under the conditions of a supervision
order or interim supervision order.
Clauses 153(2) and (3) require the Authority to give notice of a
proposed direction to each person included on the victims register
as a victim of the offender specifying the nature of the direction
and the period within which a victim submission can be made in
relation to the direction.
Clauses 153(4) and (5) provide that a victim submission must be
made within the period specified in a notice served on the person
under subclause (2) and must--
• be in writing;
• address matters relating to the person's views about any
directions to which the offender should be subject; and
• include any other prescribed matter.
83
Clause 154 outlines how victim submissions are to be dealt with by the
Authority.
Clause 154(1) provides that before giving an offender a direction
under a supervision order or interim supervision order, the
Authority--
• must consider whether it is appropriate to consider
victim submissions regarding the matter to be
determined, having regard to the conditions of the
order; and
• if the Authority considers it appropriate−
• must consider any victim submission it receives
regarding the matter being determined; and
• may give that submission the weight that the
Authority sees fit in determining whether to give
a direction.
Clause 154(2) prohibits the Authority from releasing a victim
submission to the offender unless--
• in the opinion of the Authority, the release of the
submission is essential in the interests of fairness and
justice; and
• prior to releasing the victim submission, the Authority
has asked the person who made the submission whether
the person consents to the submission being released to
the offender, or wishes to amend the submission so that
it can be released to the offender, or wishes to withdraw
the submission.
Clause 154 (3) provides that if a person who made the
submission does not consent to any of the options outlined in
subclause (2)(b), then the Authority must not release the victim
submission to the offender and, when determining whether to
give a direction, may reduce the weight it would have otherwise
given to the submission had it been disclosed.
Clause 154(4) provides that despite subclauses (2) and (3), the
Authority may take reasonable steps to disclose to the offender
or the offender's legal representative, the substance of the victim
submission, provided that the Authority is satisfied that such
steps would not reasonably lead to the identification of the victim
who made the submission.
84
Part 12--Contravention of supervision order or
interim supervision order
Part 12 creates the offence of contravening a supervision order or interim
supervision order and outlines various powers and procedures relating to the
investigation and prosecution of contraventions.
Division 1--Holding power if imminent risk of contravention
Clause 155 empowers a police officer to apprehend and detain an offender
subject to a supervision order or interim supervision order in the
circumstances outlined in this clause.
Clause 155(1) provides that this power is enlivened when there
are reasonable grounds to suspect that there is an imminent risk
that the offender will contravene a condition of his or her order.
Clause 155(2) provides that an offender apprehended under
subclause (1) may be detained in a police station or, if the police
officer considers it necessary to protect any person or property
or to prevent the offender from escaping, in a police gaol.
Clause 155(3) provides that section 479C of the Crimes
Act 1958 (escape and related offences) does not apply to an
offender apprehended and detained under this clause.
Clause 156 provides police officers with power to search an offender
detained under clause 155, subject to limitations outlined in this
clause.
Clause 156(1) provides that the search power is enlivened if the
police officer suspects on reasonable grounds that the offender
is in possession of an object that may cause injury or be used to
escape from detention. It empowers the police officer to search
the offender and any vehicle, package or thing in the possession
of the offender.
Clause 156(2) clarifies that a suspicion that a search would
provide evidence that an offence has been or is being committed
is not sufficient grounds to conduct a search under this clause.
Clause 157 provides that a police officer may use reasonable force when
exercising a power under clauses 155 or 156.
Clause 157(2) and (3) confer reporting obligations on the police
officer who exercised force and the Chief Commissioner of
Police. The police officer who exercised force must report that
85
fact to the Chief Commissioner of Police as soon as practicable.
The Chief Commissioner must then notify the Secretary of that
report of the use of force as soon as practicable.
Clause 158 outlines certain procedural requirements following apprehension
under this Part.
Clause 158(1) requires a police officer, as soon as practicable
after the apprehension of an offender to--
• inform the offender that the offender may communicate,
or attempt to communicate, with a friend or relative to
inform that person of the whereabouts of the offender
and may also communicate, or attempt to communicate,
with a legal practitioner; and
• give the offender a notice containing the prescribed
information concerning the detention and rights of the
offender.
Clause 158(2) provides that if an offender wishes to
communicate with a friend, relative or legal practitioner, a
police officer must provide the offender with reasonable
facilities to do so as soon as practicable and must, in the case
of a legal practitioner or clerk of a legal practitioner, allow the
communication to occur in circumstances which, as far as
practicable, will not be overheard.
Clause 158(3) provides that a police officer must arrange for an
interpreter for an offender if the offender does not have sufficient
knowledge of the English language to understand why the
offender has been detained.
Clause 159 provides that the maximum period which an offender may
be detained under this Division is a continuous period of
72 hours commencing on detention. This period reflects
recommendation 9 of the Harper Review.
Clause 160 prohibits a police officer from questioning an offender detained
under this Division in relation to an offence, an alleged offence
or an alleged contravention of a condition of a supervision order
or an interim supervision order.
86
Clause 161 provides that a police officer must notify the Secretary
immediately if an offender is apprehended and detained under
clause 155. The Secretary must notify the Authority as soon as
practicable of the apprehension and detention under clause 155.
Division 2--Power of arrest
Clause 162 provides a police officer with powers of arrest.
Clause 162(1) provides that a police officer may arrest an
offender without a warrant if the officer reasonably suspects that
the offender has committed an offence against clause 169.
Clause 162(2) provides that an offender arrested under
clause 162(1) must, as soon as practicable, be remanded in
custody or released on bail in accordance with the Bail Act 1977.
Clause 162(3) provides that, in addition to the requirements of
the Bail Act 1977, any period that the offender has been detained
under Division 1 must be taken into account when determining
whether to release the offender on bail.
Clause 163 provides police officers with powers to enter and search premises
to arrest an offender.
Clause 163(1) provides that a police officer may enter and search
a premises (including any residence or vehicle) for the purposes
of arresting an offender under clause 162 where the police officer
reasonably suspects that the offender is present.
Clause 163(2) provides that the police officer may use reasonable
force to enter premises under subclause (1) if necessary.
Clause 163(3) provides that in conducting a search under
subclause (1) a police officer may--
• search that part of the premises that is occupied by
the offender, and any thing (including any vehicle)
belonging to, or in the possession of or under the
control of, the offender at the premises; and
• search (by garment search or a pat-down search
or both) and examine the offender at the premises.
Clause 163(4) provides that to the extent practicable, a pat-down
search must be conducted by a person of the same sex as the
offender being searched.
87
Clause 163(5) provides that in conducting a search under
subclause (1) a police officer may seize and take a sample of any
thing belonging to, or in the possession of or under the control of
the offender if the police officer suspects on reasonable grounds
that--
• the thing will afford evidence of the commission of an
indictable offence; or
• it is necessary to seize or take a sample of that thing in
order to prevent its concealment, loss or destruction or
its use in the commission of any indictable offence.
Clause 163(6) provides that in conducting a search under
subclause (1), a police officer can seize any thing belonging to
or in the possession or under the control of the offender, which
the police officer reasonably suspects--
• will compromise the welfare or safety of a member
of the public or the offender's compliance with the
supervision order or interim supervision order; or
• is related to behaviour or conduct associated with
an increased risk of the offender re-offending or
contravening the conditions of the supervision order
or interim supervision order.
Clause 163(7) provides that a police officer may examine
any thing or operate any electronic equipment seized under
subclause (6) for the purpose of investigating--
• whether the offender has re-offended; or
• whether the offender has otherwise contravened a
condition of a supervision order or interim supervision
order.
Clause 163(8) confirms that clause 236 applies with any
necessary modifications to a police officer conducting a search
or seizure under this clause.
Clause 163(9) provides that, if necessary, a police officer may
use reasonable force to carry out a search or seizure under this
clause.
Clause 163(10) provides a search under this clause may continue
only for as long as required to achieve the purpose of the search.
88
Clause 163(11) provides a police officer exercising a power of
seizure under this clause may direct a Victorian Police employee
or any person who delivers services to or advises Victoria Police
to accompany them to exercise the powers subject to the
direction.
Clause 163(12) provides that the Chief Commissioner of Police
must include in the register under clause 237 things seized by a
police officer under this clause.
Clause 163(13) provides that clauses 239, 240, 241(1), 242, 243,
244, 245, 246 and 247 apply with any necessary modifications to
things seized under this clause.
Clause 164 sets out the requirements for police officers announcing their
entry under clause 163.
Clause 164(1) provides that a police officer exercising a power
of entry under clause 163 must announce that the police officer is
authorised by law to enter the premises and if the police officer
has been unable to obtain unforced entry, must give any person at
the premises an opportunity to allow entry to the premises.
Clause 164(2) provides that a police officer need not comply
with subclause (1) if the police officer reasonably suspects that
immediate entry to the premises is required to ensure the safety
of any person, or that an offence against clause 169 does not
continue, or that the arrest of an offender in relation to an offence
against clause 169 is not frustrated.
Clause 165 sets out the requirements for the warning a police officer must
give to an offender before conducting a search or seizure under
clause 163.
Clause 166 provides that a police officer must report as soon as practicable
to the Chief Commission of Police a use of force in entering a
premises and carrying out a search or seizure under clause 163.
The Chief Commissioner of Police must notify the Secretary as
soon as practicable after any use of force by a police officer
under clause 163.
Clause 167 provides that the Chief Commissioner of Police must notify the
Secretary in writing of the exercise of the exercise of a power
of entry under clause 163. The Secretary must report to the
Authority any exercise of a power of entry under clause 163 that
has been reported to the Secretary.
89
Clause 168 provides supervision officers or specified officers with power
to arrest an offender in a residential treatment facility without a
warrant, if the officer believes on reasonable grounds that the
offender has contravened the conditions of the supervision order
or interim supervision order by--
• committing a serious sex offence; or
• committing a serious violence offence; or
• committing an offence listed in Schedule 3; or
• engaging in conduct that poses a risk to the good order
of the facility; or
• engaging in conduct that poses a risk to the safety or
welfare of offenders or staff at the facility, or visitors at
the facility.
Clause 168(2) provides that if necessary a supervision officer or a
specified officer may use reasonable force to arrest an offender
under subclause (1).
Clause 168(3) provides that a supervision officer or a specified
officer who has arrested a person under subclause (1) must
deliver the person into the custody of a police officer as soon as
practicable and may detain the offender in a suitable place in the
residential treatment facility until the offender is delivered into
the custody of the police.
Division 3--Contravention of supervision order or
interim supervision order
Clause 169 makes it an offence to contravene a condition of an order without
reasonable excuse and provides a maximum penalty of level 6
imprisonment. This imposes an evidential burden on the
offender to make out a defence of reasonable excuse.
This clause makes it clear that it is not an offence to contravene
a condition relating to medical treatment or a condition by
engaging in conduct that threatens the safety of the offender or
that causes harm to the offender. This is intended to protect
the offender's right to privacy and right to not be subjected to
medical experimentation or treatment without full, free and
informed consent.
90
The clause note also indicates that in the case of an intentional
or reckless contravention of a restrictive condition of an order,
section 10AB of the Sentencing Act 1991 requires that a term of
imprisonment of not less than 12 months be imposed, unless the
court finds that a special reason exists. If the court finds special
reasons, it retains full sentencing discretion.
Clause 170 allows the Authority to inquire into an alleged contravention of a
condition of an order by the offender.
Clause 170(2) provides that following an inquiry into a
contravention under this clause, and having regard to the
seriousness of the contravention, the Authority may do one or
more of the following--
• take no action;
• give the offender a formal warning;
• vary a direction that the Authority has given the
offender under a condition of the order;
• recommend that the Secretary apply under Part 8 for
review of the conditions of the order;
• recommend that the Secretary refer the matter to the
DPP to consider whether an application for a detention
order should be made;
• recommend that the Secretary commence a criminal
proceeding against the offender for the alleged
contravention.
Clause 171 provides for the procedure in relation to an inquiry
under clause 170.
Clause 171(1) provides that the Authority may require the
offender to attend before it for the purpose of the inquiry.
Clause 171(2) provides that subject to subclause (3), the
Authority must give the offender any report or other information
it intends to rely on at the inquiry.
Clause 171(3) provides that the Authority does not have to give
the offender a report or other information if the chairperson of
the Authority consider that it is not in the public interest to do so.
For example, if the report or other information disclosed personal
details of a victim.
91
Clause 171(4) provides that subject to subclause (5), the
Authority must give the offender an opportunity to respond to
a report or information given under subclause (2).
Clause 171(5) allows the Authority to complete its inquiry
without hearing the offender if--
• the offender refused to attend before the Authority when
required to do so; or
• the Authority considers that it must complete the inquiry
as soon as practicable; or
• the Authority considers it appropriate to do so.
Clause 172 provides that the Authority may consider the conduct of an
offender to be a serious contravention for the purposes of
determining what action to take under clause 170 if the conduct
constituting the contravention--
• creates a risk to the safety of the community;
• is a repeated contravention of a condition;
• may increase the risk that an offender may commit a
serious sex offence or a serious violence offence or both
or an offence referred to in Schedule 3;
• is preparatory to the commission of a serious sex
offence or serious violence offence or both or an
offence referred to in Schedule 3;
• threatens the safety of any person; or
• seriously compromises the rehabilitation or treatment
of the offender.
Clause 172(2) provides that nothing in subclause (1) limits
the circumstances in which conduct of an offender may be
considered to constitute a serious contravention of a condition
of an order.
Clause 172(3) confirms that this clause does not apply to a
contravention by the offender of a condition relating to medical
treatment or a condition by engaging in conduct that threatens the
safety of the offender or that causes harm to the offender.
92
Clause 173 provides for the commencement of criminal proceedings for an
offence against clause 169. This provision is not intended to alter
the existing procedures for commencing criminal proceedings
under sections 172 and 172A of the Serious Sex Offenders
(Detention and Supervision) Act 2009, but merely to bring the
provisions up to date with those in the Criminal Procedure
Act 2009, subject to the provisions in the Bill.
Clause 169(1) provides that criminal proceedings may be
commenced by the Secretary or a police officer. It is not
intended that this limit the existing practice of effecting
commencement by the filing of a charge-sheet, or to limit the
power of the DPP to file a direct indictment.
Clause 173(2) provides that subject to subclause (3), a criminal
proceeding for an offence against clause 169 is to be heard and
determined by the Supreme Court or the County Court, being the
court that made the supervision order, the contravention of which
is the subject of the charge.
Clause 173(3) provides that if the supervision order was made by
the Court of Appeal under clause 122, the criminal proceeding is
to be heard by the court to which the matter has been remitted
under clause 121(1)(l).
Clause 173(4) provides that a summons to answer a charge
against clause 169 issued under section 12 of the Criminal
Procedure Act 2009 must direct that the accused attend before
the Supreme Court or the County Court, as the case requires.
Clause 173(5) provides that despite section 64(2)(a) of the
Magistrates' Court Act 1989, a warrant to arrest an accused
charged with an offence under clause 169 authorises the person
to whom it is directed to bring the accused before a bail justice or
the Supreme Court or County Court (as the case requires) within
a reasonable time after being arrested to determine whether bail
should be granted.
Clause 173(6) provides that the Magistrates' Court must, by
order, transfer a criminal proceeding under clause 169 to the
Supreme Court or the County Court, as the case requires.
93
Clause 173(7) clarifies that for the purposes of subclause (6), the
Magistrates' Court may be constituted by a proper officer of the
court, prescribed by the rules of the court. This is not intended to
limit the offender's right to appear before a magistrate under
section 4(1) of the Bail Act 1977.
Clause 174 provides that the Supreme Court or County Court, as the case
requires, may hear and determine summarily a charge for an
offence under clause 169. This provision is not intended to alter
the existing powers and procedures under section 172 of the
Serious Sex Offenders (Detention and Supervision) Act 2009.
Clause 174(2) provides that for the purposes of subclause (1),
section 29 of the Criminal Procedure Act 2009 does not apply.
Section 29 of that Act governs when an indictable offence may
be triable summarily.
Clause 174(3) provides that a summary hearing is to be
conducted without a jury and, as far as practicable, in accordance
with Part 3.3 of the Criminal Procedure Act 2009.
Clause 174(4) provides that subclauses 174(1) and (3) apply
despite anything to the contrary in any Act or rule of law
(other than the Charter of Human Rights and Responsibilities
Act 2006).
Clause 175 provides for transfer of proceedings for related summary
offences.
Clause 175(1) defines related offence as having the same
meaning as in the Criminal Procedure Act 2009.
Clause 175(2) provides that, subject to subclause (3), if the
Magistrates' Court transfers a proceeding under clause 173, it
must also, by order, transfer to the same court all proceedings in
respect of charges against the offender for summary offences that
are related offences.
Clause 175(3) provides that the Magistrates' Court may order that
a proceeding for a summary offence referred to in subclause (2)
not be transferred under this clause if the offender and the
prosecutor in the proceeding for an offence against clause 169
agree.
Clause 175(4) clarifies that for the purposes of this clause, the
Magistrates' Court may be constituted by a proper officer of the
court, prescribed by the rules of the court.
94
Clause 176 provides for the hearing and determination of a related summary
offence by the Supreme Court or County Court.
Clause 176(1) provides that if an offender is before the Supreme
Court or the County Court for an offence against clause 169, the
court may hear and determine a charge for a summary offence
transferred under clause 175 before sentencing or otherwise
dealing with the offender.
Clause 176(2) allows the Supreme Court or County Court, if the
charges for an offence against clause 169 are discontinued, to
hear and determine a charge for a summary offence that has been
transferred under clause 175.
Clause 176(3) provides that, as far as practicable, the court must
hear and determine a charge for a summary offence without a
jury in accordance with Part 3.3 of the Criminal Procedure
Act 2009.
Clause 176(4) provides that, without affecting the admissibility
of any evidence which may be given apart from this subclause,
on the hearing of a charge transferred under clause 175, the court
may admit as evidence in relation to the charge, evidence given
during a trial or summary hearing of the charge against the
offender for an offence against clause 169.
Clause 176(5) provides that a party may adduce further evidence
only with the leave of the court.
Clause 176(6) allows the court, if the court considers it
appropriate, to transfer a proceeding for a summary offence
under clause 175 back to the Magistrates' Court for hearing and
determination.
Clause 176(7) provides that the court can impose any sentence in
respect of a summary offence transferred under clause 175 that
could have been imposed by the Magistrates' Court.
A clause note clarifies that rights of appeal in relation to
summary offences heard under clause 176 are found in the
Criminal Procedure Act 2009.
Clause 177 provides that if a proceeding is transferred under clause 173 or
175, the Supreme Court or the County Court, as the case requires,
may issue a warrant to arrest an offender, if the offender does not
attend before the court in answer to a summons to answer a
charge which has been served in accordance with the Criminal
95
Procedure Act 2009 or in accordance with the offender's
conditions of bail.
Part 13--Management of Offenders
Division 1--Management of offenders at residential facilities
Clause 178 establishes the process to appoint a premises to be a residential
facility. The purpose of a residential facility is set out under
clause 179.
Clause 178(1) provides that the Governor in Council may appoint
any premises, or part of a premises or place, as a residential
facility except for a prison, police gaol, or residential treatment
facility (appointed under clause 195).
Clause 178(2) directs that the number of people who can reside in
the facility must be stated in the order.
Clause 178(3) provides that the appointment of a premises as a
residential facility may be revoked by the Governor in Council
by an order published in the Government Gazette.
Clause 178(4) clarifies when an order made by the Governor in
Council under this clause will come into effect.
Clause 179 sets out the purpose of a residential facility, which is to house
offenders on supervision orders or interim supervision orders
and--
• provide supervision and case management;
• provide safe accommodation of offenders;
• protect the community from the offenders; and
• provide support to assist the offenders to comply with
the conditions of their orders.
The purpose of a residential facility is to accommodate
offenders who have received a custodial sentence for a serious
sex offence. This is reflected in clause 34 and preserves the
existing arrangements in relation to residential facilities.
Residential facilities are not appropriately adapted to manage
the unique risks posed by serious violent offenders.
96
Clause 180 provides that the Commissioner is responsible for the
management and good order of a residential facility. In the
management of offenders at the residential facility, the
Commissioner must ensure that each condition of the supervision
order or interim supervision order is given effect along with each
direction given by the Authority in relation to the order.
Clause 181 provides that persons working at the residential facility are
subject to the directions of the Commissioner. Registered
dentists, registered medical practitioners, registered nurses and
health workers are subject to the directions of the Commissioner
in relation to the good order of the facility only. People working
in another capacity are subject to the directions of the
Commissioner.
Clause 182 sets out the duties of a supervision officer or specified officer
working at, or in connection with, a residential facility.
A specified officer is a person authorised to act under clause 340,
and a supervision officer is defined under clause 3. For the
purposes of clause 182, a supervision officer is also further
defined in clause 182(5) as including persons working at the
facility as a registered dentist, registered medical practitioner,
registered nurse, an employee in the teaching service and a
member of staff of TAFE institute or dual sector university.
Clause 182(1) sets out duties to make reports, returns and keep
records and provide the reports, returns and records to the
Commissioner or another person or body as directed by the
Commissioner.
Clause 182(2) sets out duties for supervision officers to report
to a court or to the Authority when required to do so by the
Commissioner.
Clause 182(3) sets out duties for supervision officers and
specified officers to not jeopardise the good order of the facility
and to report immediately to the officer in charge anything which
might reasonably be thought to jeopardise the good order of the
facility.
Clause 182(4) clarifies that for supervision officers who work
at the facility as a dentist, medical practitioner, nurse, or health
worker reports, returns and records referred to are those which
concern the good order of the facility only.
97
Clause 182(5) defines classes of people that are included in the
meaning of a supervision officer, for the purposes of this clause.
Clause 183 provides supervision officers and specified officers power to
give reasonable instructions to an offender in accordance with a
supervision order or interim supervision order when necessary to
ensure the good order of the facility, the safety and welfare of
any offenders, staff and visitors to the facility, compliance with
conditions of an order and compliance with a direction of the
Authority made in accordance with a supervision order or interim
supervision order.
Any directions of the Authority must constitute the minimum
interference with the offender's liberty, privacy or freedom of
movement that is necessary in the circumstances to ensure the
purposes of the provisions are reasonably related to the gravity of
the risk of re-offending.
Clause 183(2) clarifies that the power provided to supervision
officers and specified officers under this clause extends to giving
instructions to an offender when they are outside the residential
facility.
Clause 184 deals with the power of supervision officers and specified
officers to use reasonable force to compel an offender's
compliance with instructions.
Clause 184(1) provides that a supervision officer or specified
officer can use reasonable force to compel an offender to comply
with an instruction if the supervision officer or specified officer
believes on reasonable grounds that the use of reasonable force is
necessary to prevent a person, including the offender, from being
killed or seriously injured, or to prevent serious damage to
property.
Clause 184(2) permits a specified officer to use an authorised
instrument of restrain against an offender where the specified
officer believes on reasonable grounds that this is necessary to
prevent a person, including the offender, from being killed or
seriously injured. An authorised instrument of restraint is an
instrument, or type of instrument, authorised under section 55D
of the Corrections Act 1986.
98
Clause 185 provides that an offender is entitled to enter and leave a
residential facility subject to the conditions of their supervision
order or interim supervision order, any directions of the
Authority, any instructions given under clause 183 and pursuant
to the current Division.
Clause 186 permits the Commissioner to authorise any person to enter a
residential facility subject to any conditions set out by the
Commissioner. The Commissioner may order a person to leave
the facility if the person contravenes the laws and regulations
made under this Bill, contravenes any directions of the
Commissioner, including a condition to which the authority to
enter is subject, or does anything which, in the opinion of the
Commissioner, threatens the good order of the facility.
The person must leave immediately on being ordered to do so by
the Commissioner.
Clause 187 regulates the entry and exit of visitors to a residential facility.
Visitors may enter a residential facility subject to the conditions
of the supervision order or interim supervision order governing
the offender being visited, the conditions of any other supervision
order or interim supervision order that may be relevant,
directions of the Authority, any reasonable requirements of the
Commissioner and the conditions set out under this Division.
Supervision officers and specified officers may give instructions
to visitors where necessary for the management and good order
of the facility or the safety and welfare of people in the facility.
Clause 188 allows the officer in charge, by order, to exclude a person from
the facility if the officer in charge believes on reasonable grounds
that the person may pose a risk to the good order of the facility or
to the safety and welfare of people within the facility.
Clause 189 deals with collection of information from visitors to a residential
facility and consequences for failure to provide the requisite
information.
Clause 189(1) sets out what information may be required of a
visitor.
Clause 189(2) sets out the powers of a supervision officer or a
specified officer to prohibit entry or require a person to leave if
the person has provided false or misleading information.
99
Clause 189(3) makes clear that a person ordered to leave a
residential facility may only return with the permission of the
Commissioner.
Clause 189(4) permits the use of reasonable force by a
supervision officer or a specified officer to compel the expulsion
of a person if the person does not comply with an order to leave
the facility. A supervision officer or a specified officer is not
liable for any damage caused to the person when ejecting the
person from the facility while using reasonable force.
Clause 190 creates offences relating to the operation or possession of a
remotely piloted aircraft or a helicopter in or near a residential
facility.
Clause 190(1) prohibits a person, without reasonable excuse,
from intentionally or recklessly operating or attempting to
operate a remotely piloted aircraft or a helicopter inside, in the
airspace above or outside of but near to a residential facility in a
manner that threatens or is likely to threaten the good order or
security of the facility or anyone in the facility. To do so in an
offence punishable by up to 2 years' imprisonment.
Clause 190(2) prohibits a person, without reasonable excuse,
from possessing a remotely piloted aircraft in or near a residential
facility. To do so is punishable by up to 2 years' imprisonment.
Clause 190(3) outlines when a person will not contravene
clause 190 (1) and clause 190 (2) by listing reasons why a
person may be lawfully authorised to operate a remotely piloted
aircraft or a helicopter or to possess a remotely piloted aircraft.
Clause 190 (3)(a) makes clear that a person does not commit an
offence if the person is a prescribed person or belongs to a
prescribed class of persons.
Clauses 190(4) allows supervision officers and specified officers
to order a person to leave the neighbourhood of a residential
facility where they believe on reasonable grounds that the person
has committed an offence under clause 190 (1) or 190 (2).
Clause 190(5) provides that the person must be told of the reason
why the person is being asked to leave before they are ordered to
do so.
Clause 190(6) makes it an offence for a person to fail to comply
with an order to leave made under clause 190(4).
100
Clause 191 permits the officer in charge of a residential facility to authorise,
by instrument, a person, or persons belonging to a class of
person, to operate or possess a remotely piloted aircraft or
helicopter as out described in clause 190(1) and clause 190(2).
Clause 192 gives supervision officers and specified officers powers to
arrest a person where they reasonably believe that the person
has committed an offence under clause 190(1) or clause 190(2).
Supervision officers and specified officers may arrest a person
without a warrant and must deliver the person to a police officer
as soon as practicable.
Clause 192(3) provides that the Crimes Act 1958 (except
sections 458(1) and 458(2)) applies to the arrest of the person.
Section 458 empowers any person to apprehend another person
without warrant in certain circumstances. Sections 458(1)
and 458(2) of the Crimes Act 1958 do not apply because it is
intended that only supervision officers and specified officers
have the power to apprehend a person without a warrant.
Otherwise, the Crimes Act 1958 is to apply as if the person were
found committing an offence as referred to in section 458(1)(a)
of that Act.
Clause 193 permits a supervision officer to photograph an offender for the
purpose of identifying the offender or for records relating to
the offender. A supervision officer is also permitted to give an
offender instructions necessary to the taking of accurate
photographs.
Clause 194 creates reporting obligations in relation to the use of force or use
of an authorised instrument of restraint under clause 184.
Clause 194(1) requires a supervision officer or specified officer
who uses force or applies an authorised instrument of restraint to
report the use of force or use of the instrument to the officer in
charge as soon as practicable.
Clause 194(2) requires the officer in charge to report to the
Commissioner as soon as practicable any reports made pursuant
to clause 194(1).
Clause 194(3) requires the Commissioner to report to the
Secretary any report made pursuant to clauses 194(1) and 194(2).
101
Division 2--Management of offenders at
residential treatment facilities
Clause 195 establishes the process required for the Governor in Council
to appoint a premises to be a residential treatment facility.
The purpose of a residential treatment facility is set out under
clause 196.
Clause 195(1) provides that the Governor in Council may appoint
any premises, or part of a premises or place, as a residential
treatment facility except for a prison, police gaol, or residential
facility (appointed under clause 178).
Clause 195(2) directs that the number of people who can reside in
the facility must be stated in the order.
Clause 195(3) provides that the appointment of a premises as a
residential treatment facility may be revoked by the Governor in
Council by an order published in the Government Gazette.
Clause 195(4) provides that an order made by the Governor in
Council comes into operation on its making, or on a later date
specified in the order.
Clause 196 sets out the purpose of a residential treatment facility, which is
to house offenders on supervision orders or interim supervision
orders and to--
• protect the community from the offenders;
• provide intensive treatment and supervision to offenders
to reduce the risk of those offenders committing a
serious sex offence or serious violence offence;
• assist with the transition of offenders into the
community;
• assist the offenders to comply with the conditions of
their orders in a therapeutic environment by providing
intensive support and case management; and
• provide short-term and safe accommodation for
offenders.
This Division is a new Division and is not mirrored in the
Serious Sex Offenders (Detention and Supervision) Act 2009.
The current Division introduces the appointment of premises as
residential treatment facilities and deals with the management of
102
offenders at these facilities. Residential treatment facilities are
intended to operate as a "step up/step down" facility between
prison and a residential facility. The key distinguishing features
of the facility--from both prison and a residential facility--are
the external and internal security features, service model and
length of stay.
The residential treatment facility is included as a reform to the
post-sentence scheme to meet the acute need for secure residence
which provides housing to serious violence offenders and serious
sex offenders who pose an escalated risk of re-offending and
cannot be adequately managed in the community under
supervision.
Clause 197 provides that Division 1 (except clauses 178, 179, 185 and 188)
applies to a residential treatment facility as if a reference to a
residential facility were a reference to a residential treatment
facility. For background--
• clause 178 deals with the appointment of a residential
facility;
• clause 179 deals with the purpose of a residential
facility;
• clause 185 deals with the rights of an offender to enter
and leave a residential facility; and
• clause 188 deals with the exclusion of visitors from the
residential facility for safety reasons.
In contrast to a residential facility, offenders accommodated in
the residential treatment facility will not be entitled to enter and
leave the facility at any time. Instead offenders in the residential
treatment facility will be detained in the facility but may move
within the grounds of the facility (subject to conditions set out in
clause 198).
Clause 198 permits offenders to move within a residential treatment facility
at any time subject to conditions listed in the supervision order
or interim supervision order, the terms of the treatment and
supervision plan, any directions from the Authority, any
instructions provided under clause 183 and under the current
Division.
103
Clause 199 provides that an offender who is subject to an intensive treatment
and supervision condition on a supervision order is not allowed
to enter and leave the residential treatment facility other than in
accordance with--
• the conditions of the supervision order; and
• the terms of the treatment and supervision plan; and
• the directions of the Authority; and
• any instructions given under clause 183; and
• this Division.
Clause 200 sets out the rights of offenders residing in a residential treatment
facility. The clause makes clear that the rights set out are in
addition to, and do not affect any right possessed by the offender
under common law or under any other Act. The rights referred to
in this clause are subject to the offender's supervision order or
interim supervision order and the conditions contained therein,
and any directions of the Authority. The rights specified relate
to--
• clauses 200(1)(a), 200 (1)(b) and 200 (1)(c)--access to
medical care and treatment, access to private health care
with the approval of the Commissioner, and access to
reasonable specialist care and treatment for offenders
with an intellectual disability or mental illness within
the facility or outside the facility with the
Commissioner's approval;
• clause 200(1)(d)--access to education programs at the
expense of the offender;
• clause 200(1)(e)--access to at least one visit per week
which excludes visits from health practitioners, legal
practitioners and independent prison visitors;
• clause 200(1)(f)--the right to make complaints
about the management of the facility to those directly
responsible for the operation of the facility, any
member of Parliament, an independent prison visitor,
the Ombudsman and to a range of commissioners and
independent bodies;
104
• clause 200(1)(g)--the right to send and receive letters
without having the contents of those letters read in
certain circumstances, including communications
between an offender and legal practitioner and in the
context of a complaints process;
• clause 200(1)(h)--the right to send and receive other
letters subject to the provisions the Bill;
• clause 200(1)(i)--the right to be provided with
information that is in a format which is easily
understood concerning the offenders rights and
responsibilities, the rules, routines and procedures of
the facility, and procedures for making complaints;
• clause 200(1)(j) and clause 200(1)(k)--access to
adequate food including for specific dietary
requirements and specific medical needs;
• clause 200(1)(l)--ability to wear suitable clothing
owned by the offender; and
• clause 200(1)(m)--ability to practice religion including
with others of the same faith or practice and right to
possess articles of that faith or practice, if consistent
with the good order of the facility.
Clause 200(3) confirms that an offender's rights under this clause
are subject to the conditions of the supervision order or interim
supervision order and any directions of the Authority.
Clause 201 permits the Commissioner to open and inspect a letter to or
from an offender if the Commissioner reasonably believes that
the letter contains any substance or article which may pose a
risk to the safety of any person. The clause sets out how the
Commissioner may open the letter.
The purpose of this power is to search for the substance or article
which may pose a risk, not to read communication. Accordingly,
the Commissioner is not to read or censor the letter, but may
inspect the envelope and any associated packet, parcel, container
or wrapper.
105
Clause 201(3) makes clear that clause 201 does not affect
clause 224(4) which sets out the circumstances in which an
officer in charge of the residential treatment facility may read
correspondence in the offender's possession when conducting a
search under that clause.
Clause 202 requires the Commissioner to create a letter register recording
details of any letter dealt with under clause 201 including the
reasons a letter was opened, details of any substance or article
found in the letter and details of any other action taken in relation
to the letter or any thing found in the letter.
Clause 203 permits a Judge of the Supreme Court or the County Court, or
an independent prison visitor appointed under section 35 of the
Corrections Act 1986, to visit a residential treatment facility.
A judge may visit at any time and an independent visitor may
visit in accordance with the terms of their appointment.
A person visiting a facility under this clause may report on the
visit to the Minister including recommendations as to what action
may be taken in relation to certain matters raised in the report.
Clause 203(5) makes clear that clause 188 does not apply.
Clause 188 deals with the exclusion of visitors for safety reasons.
Clause 204 outlines the process for a visit by an independent prison visitor as
appointed under section 35 of the Corrections Act 1986.
Clause 204(1) and clause 204(2) set out the duties of the officer
in charge of the facility in facilitating the visit.
Clause 204(3) makes clear that an independent prison visitor has
the ability to interview an offender in private and outside of the
hearing of a supervision officer or specified officer subject to a
direction made by the officer in charge in relation to the security
of the facility.
Clause 205 provides that the officer in charge of a residential treatment
facility may by order prohibit a person (other than a Judge of the
Supreme Court or the County Court or independent prison
visitor) from visiting the facility if the officer in charge believes
on reasonable grounds that the person's entry into the facility
might endanger the good order of the facility or the safety and
welfare of offenders and staff at the facility or visitors to the
facility.
106
Clause 205(2) provides that the officer in charge of a residential
treatment facility reasonably suspects the facility or the safety of
a visitor is threatened, the officer may order a visitor to leave the
facility.
Division 3--Management of offenders at other places
Clause 206 provides for the application of this Division. This Division
relates to the management of an offender required under a
supervision order or interim supervision order to reside at a place
that is not a residential facility or a residential treatment facility.
Clause 207 provides that the Commissioner is responsible for the
management of the offender. The Commissioner must
ensure that each condition of the supervision order or interim
supervision order is given effect along with each direction
given by the Authority in accordance with the order.
The Commissioner may direct a community corrections officer to
be responsible for the day to day management of the offender.
Clause 208 provides that a community corrections officer who manages an
offender, and specified officers who assist in that management,
are subject to the direction of the Commissioner.
Clause 209 empowers community corrections officers and specified officers
to give reasonable instructions to an offender for certain
purposes.
Clause 209(1) provides that a community corrections officer or
a specified officer may give to an offender such reasonable
instructions as are necessary to ensure--
• the safety and welfare of an offender or any other
person; or
• compliance with any conditions of the supervision order
or interim supervision order; or
• compliance with any rehabilitation or treatment plan; or
• compliance with any directions given by the Authority
with respect to the supervision order or interim
supervision order.
107
Clause 209(2) provides a specified officer with the power to
use reasonable force to compel an offender to comply with an
instruction if the specified officer believes on reasonable grounds
that the use of reasonable force is necessary to prevent a person,
including the offender, from being killed or seriously injured, or
to prevent serious damage to property.
Clause 209(3) allows a specified officer to use an authorised
instrument of restraint against an offender where the specified
officer believes on reasonable grounds that this is necessary to
prevent a person, including the offender, from being killed or
seriously injured. An authorised instrument of restraint is an
instrument, or type of instrument, authorised under section 55D
of the Corrections Act 1986.
Clause 210 creates reporting obligations in relation to the use of force or use
of an authorised instrument of restraint under clause 209(2) and
clause 209(3). A specified officer who uses force or applies an
authorised instrument of restraint is to report the use of force or
use of the instrument to the Commissioner as soon as practicable,
and the Commissioner is then required to report to the Secretary
any report made under this clause, as soon as practicable.
Division 4--Alcohol and drug testing of offenders
Clause 211 confirms that the term drug of dependence has the same
meanings as in the Drugs, Poisons and Controlled Substances
Act 1981, and defines the meaning of officer depending on
where the offender is residing.
Clause 212 provides for the application of this Division. This Division
applies to an offender who is subject to a supervision order or
interim supervision order that contains--
• a condition that the offender submit to drug and alcohol
testing; and
• a condition directing the offender to reside at--
• a residential facility; or
• a residential treatment facility; or
• any other place.
This clause also provides for the available methods of drug and
alcohol testing.
108
Clause 213 allows an officer, as defined under clause 211, to direct an
offender to submit to alcohol and drug testing.
Clause 213(1) provides that at the direction of an officer, the
offender must submit to the testing.
Clause 213(2) provides that an officer may give a direction
under this clause if the officer has reasonable grounds to suspect
that the offender has contravened a condition of an order by
consuming alcohol or drugs.
Clause 214 allows the Secretary to approve procedures for testing for the
purposes of this Division and requires the Secretary to publish a
notice of the approved test procedure in the Government Gazette.
Clause 215 establishes a procedure for how and when an officer, defined
under clause 211, may take a sample of a substance found in the
possession of the offender that the officer believes to be a drug of
dependence or alcohol and to be not lawfully in the offender's
possession.
Clause 215(2) requires the officer to report to the officer in
charge as soon as practicable after a sample has been taken.
Clause 215(3) creates a procedure for the officer in charge to
have the sample tested.
Clause 215(4) requires the officer in charge to keep a register of
testing of samples.
Clause 216 provides police officers with powers to test offenders for drugs
and alcohol.
Clause 216(1) provides that this clause applies to an offender
who is subject to a supervision order or an interim supervision
order which contains a condition that the offender must reside at
a place other than a residential facility or residential treatment
facility.
Clause 216(2) requires the offender to submit to certain testing at
the direction of a police officer.
Clause 216(3) permits a police officer to give a direction to an
offender under this clause where the police officer has reasonable
grounds to suspect that the offender has consumed alcohol or
drugs in contravention of a condition of their supervision order or
interim supervision order.
109
Part 14--Entry, search and seizure
Division 1--Definitions
Clause 217 defines the meaning of officer in the context of Part 14
depending on the place of residence of the offender. Clause 217
also defines the meaning of search as a garment search, a
pat-down search or both.
Division 2--General search and seizure powers
Clause 218 allows an officer, defined in clause 217, to search and examine
an offender and any thing belonging to, found in the possession
of or under the control of the offender. The officer may use
reasonable force in conducting the search and may only continue
the search for as long as is required to achieve the purpose of the
search. Where practicable, pat-down searches must be conducted
by an officer of the same sex as the offender being searched.
Clause 219 establishes the power of an officer to seize and take a sample of
things in a facility or other place of residence.
Clause 219(1) applies to officers at a residential facility or a
residential treatment facility. It allows an officer to seize or take
a sample of any thing in a facility and outlines the circumstances
in which an officer can seize a thing or take a sample. An officer
may not seize or take a sample of a thing in the possession or
control of a Judge of the Supreme Court or the County Court or
a magistrate.
Clause 219(2) applies to officers at a place other than a
residential facility or residential treatment facility. It allows an
officer to seize or take a sample of a thing in the possession or
control of an offender, or a thing that belongs to an offender, and
outlines the circumstance in which an officer can seize the thing
or take a sample.
Clause 219(3) allows an officer to direct a Victoria Police
employee, within the meaning of the Victoria Police Act 2013,
or any person who delivers services or advice on behalf of
Victoria Police, accompanying the officer to exercise powers
of seizure or examination, or a power to operate equipment
(including electronic equipment), provided to an officer under
Part 14, subject to the officer's direction. For example, this
clause would permit a police officer to direct a computer analyst
110
engaged by Victoria Police to operate equipment seized under
clause 228 of the Bill for the purposes of examining whether the
offender has complied with the supervision order.
Clause 219(4) permits an officer to use reasonable force when
seizing a thing under Part 14.
Clause 220 requires an officer to inform an offender, immediately before a
search or seizure, that the officer intends to carry out the search
or seizure, and that reasonable force may be used in order to
carry out the search or seizure.
Clause 221 requires officers and police officers to report the use of force
when conducting search and seizure or compelling a person to
leave a place under Part 14.
Clause 221(1) requires an officer, other than a police officer, to
report the use of force to carry out a search and seizure or to
compel a person to leave a place pursuant to this Division or
Division 3 to the officer in charge. The use of force to carry out
a search or a seizure by officers, other than a police officer,
pursuant to Part 14, other than Division 3, is to be reported to the
Commissioner.
Clause 221(2) requires an officer in charge to communicate any
report received under clause 221(1) to the Commissioner as soon
as practicable.
Clause 221(3) requires the Commissioner to communicate any
report of use of force under Part 14, other than by a police
officer, to the Secretary as soon as practicable.
Clause 221(4) requires a police officer to report the use of force
to carry out a search or a seizure under this Part, to compel a
person to leave premises under Division 3, or to enter premises
under clause 229(2), to the Chief Commissioner of Police as soon
as practicable.
Clause 221(5) requires the Chief Commissioner of Police to
notify the Secretary of any reports received after any use of force
by a police officer pursuant to Part 14 as soon as practicable.
111
Division 3--Search and seizure in respect of offenders residing at
residential facilities or residential treatment facilities
Clause 222 defines the meaning of premises in Division 3 to mean a
residential facility or a residential treatment facility.
Clause 223 permits the officer in charge of a premises to order a supervision
officer or a specified officer to conduct searches outside but near
to a premises where the officer in charge reasonably believes
that a person is committing or has committed an offence against
clause 190(1) or clause 190(2). Clauses 190(1) and (2) create
offences in relation to the operation or possession of a remotely
piloted aircraft or helicopter in or near a premises.
Clause 223(2) permits a supervision officer or specified officer
to conduct a search where ordered to by the officer in charge or
where the supervision officer or specified officer believes on
reasonable grounds that a person is committing or has committed
an offence under clause 190 (1) or (2).
Clause 223(3) provides how a supervision officer or a specified
officer may search a person, a person's belongings or things
within the control or possession of the person, or the location
near the premises. A supervision officer or specified officer may
also require a person to submit to a search, or search or examine
any thing outside but near to the premises where the officer
believes that thing will afford evidence of the commission of
the offence.
For the purpose of Part 14, search is defined in clause 217.
Clause 224 sets out the purposes and procedure of searches conducted inside
a premises. The officer in charge of a premises may order a
supervision officer or specified officer to conduct the search at
any time, or may request or permit a police officer to do so.
Clause 224(1) provides that an officer in charge may order,
request or permit a search where the officer in charge reasonably
suspects that a search is necessary to preserve the good order of
the premises, ensure the safety and welfare of people inside the
premises, to monitor an offender's compliance with a supervision
order or interim supervision order, or to monitor the risk, or
behaviour associated with an increased risk, of re-offending.
112
Clause 224(2) permits an officer ordered, requested or permitted
to conduct a search under clause 224(1) to search any part of, or
any thing in the premises, or search and examine an offender,
another officer or any other person in the premises or a person
wanting to enter the premises. An officer may not search a Judge
of the Supreme Court or the County Court, a magistrate or
another police officer.
Clause 224(3) makes clear that an officer may require a person
wanting to enter the premises to submit to the search and
examination.
Clause 224(4) sets out the circumstances where an officer may
read correspondence found in the possession of an offender as
a result of a search under clause 224. Correspondence may be
read where it is unsealed, or it has been resealed or when the
correspondence is not addressed to or from a person or
organisation listed in clause 224(4)(b).
Clause 224(5) provides that the officer in charge may require a
person, other than a supervision officer, specified officer, or
offender, to leave the premises if they do not submit to a search
under clause 212.
Clause 224(6) provides that an officer can use reasonable force to
compel a person to leave the premises under clause 224(5).
Clause 225 permits an officer to seize any thing found in the course of
conducting a search under clause 223 or clause 224 and provides
the circumstances in which the officer may do so.
Clause 225(1) permits an officer to seize any thing found
pursuant to a search conducted under clause 223 where the
officer believes on reasonable grounds that the thing will afford
evidence of the commission of an offence under clause 190(1)
or clause 190(2). Clause 190(1) and (2) create offences in
relation to the operation or possession of a remotely piloted
aircraft or helicopter in or near a premises.
Clause 225(2) permits an officer to seize any thing found
pursuant to a search conducted under clause 224 where the
officer believes on reasonable grounds the thing will compromise
the good order of the premises, the safety and welfare of people
at the premises, the safety or welfare of a member of the public
or the offender's compliance with the supervision order or interim
supervision order. The officer may also seize a thing where the
113
thing relates to behaviour associated with an increased risk of
re-offending or contravention of the supervision order or interim
supervision order.
Clause 225(3) permits an officer to examine any thing, or
operate electronic equipment, seized under clause 225 in order to
ascertain whether the offender has complied with the supervision
order or interim supervision order, or whether the offender has
re-offended or breached the conditions of the supervision order.
Division 4--Search and seizure in respect of offenders
residing at places other than residential facilities or
residential treatment facilities
Clause 226 establishes that this Division does not apply to residential
facilities or residential treatment facilities. The Division applies
to offenders residing at other places or premises.
Clause 227 permits the Commissioner to direct an officer, as defined by
clause 217 (other than a police officer), to search and examine an
offender at the place or premises, to search the part of the place
or premises occupied by the offender, and any thing belonging to,
or in the possession or control of the offender at the place or
premises, if the Commissioner holds a reasonable suspicion as
detailed in clause 227(2).
Clause 227(2) permits the Commission to give a direction under
clause 227(1) where the Commissioner reasonably suspects that
the search is necessary to monitor the offender's compliance with
a supervision order or interim supervision order or where the
Commissioner reasonably suspects that an offender has engaged
in behaviour associated with an increased risk of re-offending or
contravention of the supervision order or interim supervision
order.
Clause 228 sets out when an officer may seize any thing under this Division.
An officer may seize any thing if the officer reasonably suspects
that the thing will compromise the safety or welfare of a member
of the public or the offender's compliance with the supervision
order or interim supervision order. The officer may also seize a
thing if the thing relates to behaviour associated with an
increased risk of re-offending or contravention of the supervision
order or interim supervision order.
114
Clause 228(2) permits an officer to examine any thing, or operate
any electronic equipment, seized under clause 228(1) in order to
ascertain whether the offender has complied with the supervision
order or interim supervision order, or whether the offender has
re-offended.
Clause 229 sets out the powers of a police officer to enter and search the
place or premises occupied by an offender or any place or
premises where an offender is residing.
Clause 229(1) permits a police officer (subject to subclause (2))
to enter any part of the place or premises occupied by an offender
and conduct a search of that part of the place or premises that is
occupied by the offender and anything (including a vehicle)
belonging to or in the possession of, or under the control of the
offender at the place or premises.
Clause 229(2) provides that a police officer exercising a power
of entry and search under subclause (1) must reasonably suspect
that entry and search are necessary to monitor the offender's
compliance with a supervision order or interim supervision
order or that an offender has engaged in behaviour or conduct
associated with an increased risk of re-offending or contravening
the conditions of the supervision order or interim supervision
order.
Clauses 229(1) and (2) replicate the entry and search powers in
sections 152(2A) and (2B) of the Serious Sex Offenders
(Detention and Supervision) Act 2009.
Clause 229(3) permits a police officer to enter any place or
premises where the offender is residing if the police officer
reasonably suspects that the offender is present at the place or
premises and the entry is reasonably necessary to monitor the
offender's compliance with a supervision order or an interim
supervision order.
Clause 229(4) permits a police officer (subject to subclause (5))
exercising a power under subclause (3) to search that part of the
premises occupied by the offender and anything (including any
vehicle) belonging to or in the possession of, or under the control
of the offender at the place or premises and search and examine
the offender.
115
Clause 229(5) provides that a police officer must in order to
exercise a power of search under subclause (4), reasonably
suspect that the search is necessary to monitor an offender's
compliance with a supervision order or interim supervision order
or that an offender has engaged in behaviour or conduct
associated with an increased risk of re-offending or contravening
the conditions of a supervision order or interim supervision order.
Clauses 229(3)−(5) replicate the entry and search powers in
sections 158C and 158DA of the Serious Sex Offenders
(Detention and Supervision) Act 2009.
Clause 229(6) permits a police officer exercising a power under
this clause to direct certain persons to accompany the police
officer to exercise the powers.
Clause 229(7) permits a police officer to use reasonable force to
enter any part of the place or premises occupied by the offender
under subclause (1) and any place or premises where the offender
is residing under subclause (3).
Clause 230 requires a police officer exercising a power of entry to
announce their legal authority to enter the premises and to
allow any person at the place to allow the police officer unforced
entry to the place. A police officer is not required to comply
with these requirements in circumstances where the police officer
reasonably suspects that immediate entry is required to ensure
the safety of any person or to ensure effective monitoring of the
offender's compliance with a supervision order or interim
supervision order.
Clause 231 requires the Chief Commissioner of Police to report the use of
powers under clause 229 to the Secretary as soon as practicable
and requires the Secretary to report the use of powers under
clause 229 to the Authority as soon as practicable.
Division 5--Computers and other devices
Clause 232 defines various terms relating to data and accessing data stored or
held in an electronic device including a computer.
Clause 233 requires an offender to comply with a direction from the
Authority to produce a computer or device, defined in clause 232.
116
Clause 234 permits an officer entry and search powers where an offender
fails to comply with a direction from the Authority under
clause 233, and where the offender is subject to a supervision
order or an interim supervision order which contains a condition
requiring the offender to comply with a direction from the
Authority in relation to computers and other devices to allow
for auditing of contents.
Clause 234(2) permits that officer to enter any part of the place
occupied by the offender, to search and examine the offender,
and to search the place or premises that is occupied by the
offender and any thing at the place or premises belonging to,
or in the possession or control of the offender.
Clause 235 permits an officer conducting a search under clause 234 to seize
and examine the contents of a computer or other device to audit
images, programs or other material for contravention of the
conditions of the supervision order or interim supervision order
or which may increase the risk of the offender committing an
offence.
Clause 235(2) allows an officer to direct a Victoria Police
employee, within the meaning of the Victoria Police Act 2013,
or any person who delivers services or advice on behalf of
Victoria Police, accompanying the officer to exercise powers to
seize or operate a compute or other device under subclause (1).
Clause 236 applies to the examination of computers and other devices
belonging to, in the possession or under the control of--
• an offender at the place being searched pursuant to
Part 14 or which has been seized under Part 14;
• any person, other than a Judge of the Supreme Court or
the County Court or a magistrate, in relation to a search
under clauses 223 or 224 or a seizure under clause 225;
or
• an offender or person with relevant knowledge, as
defined by clause 232, and referred to in clause 236(4)
in relation to a search under clause 234 or a seizure
under clause 235.
117
Clause 236(2) permits an officer to direct the person identified in
clause 236(1) to provide information, or other assistance, in the
search or seizure which allows the officer--
• to access to the data stored in, or accessible from, the
computer or device;
• to copy data held in the computer or device to another
storage device;
• to convert data held in a computer or device, or copied
to a storage device, into a documentary or other
intelligible form; or
• to delete data held in the computer or device.
Clause 236(3) requires an officer to provide a warning to a
person before exercising powers under clause 236(2). The
officer must warn the person that they may commit an offence if
they have relevant knowledge of the computer, device or relevant
computer network, or the protection measures applied to the data
and, without reasonable excuse, fail to comply with a direction
under clause 236(2). Relevant knowledge is defined in
clause 232 and encompasses information or other assistance that
would allow an officer to gain access to data, to copy data or to
convert data.
Clause 236(4) creates the offence referred to in clause 236(3).
It is an offence for a person who receives a warning pursuant to
clause 236(3), to fail to comply with a direction under clause
236(2) without reasonable excuse. This imposes an evidential
burden on the offender to make out a defence of reasonable
excuse.
Division 6--General provisions relating to seized things
Clause 237 requires the Chief Commissioner of Police to establish and
maintain a register of things seized under Part 14 by a police
officer. The clause provides what the register must set out for
each thing seized.
Clause 238 requires the Commissioner to establish and maintain a register
of things seized by an officer, other than a police officer, under
Part 14 and things seized by a security officer under Division 4
of Part 20.
118
Clause 238(2) sets out what details are to be recorded against
each thing listed in the register.
Clause 238(3) requires an officer who seizes a thing under
Division 3 to inform the officer in charge of the facility and
to record the prescribed details of the seizure in the register.
Division 3 deals with search and seizure in respect of offenders
residing at residential facilities and residential treatment
facilities.
Clause 238(4) requires an officer, except for a police officer, who
seizes a thing under Division 4 or 5 to inform the Commissioner
of the seizure and record the prescribed details of the seizure as
soon as practicable. Division 4 deals with search and seizure
in respect of offenders residing at places other than residential
facilities or residential treatment facilities. Division 5 deals with
computers and other devices.
Clause 239 requires that all things which are seized under this Bill be
photographed or otherwise recorded.
Clause 240 requires an officer to provide a receipt for the thing seized to the
person from whom it was seized. The receipt may be left in an
obvious place at a place or premises searched if the person
refuses to accept the receipt.
Clause 240(2) requires that the receipt contain the prescribed
information and that it be signed in accordance with the
regulations.
Clause 241 sets out the circumstances in which the Chief Commissioner of
Police or the Commissioner may keep a thing seized by a police
officer or an officer, as defined in clause 217.
Clause 241(1) permits the Chief Commissioner of Police or the
Commissioner to keep the thing seized by a police officer if one
of the conditions outlined in clause 241(1)(a) is met and the thing
is not to be forfeited, destroyed or disposed of under this Bill or
any other Act or law.
Clause 241(2) permits the Commissioner to keep the thing seized
by an officer, other than a police officer, if one of the conditions
in clause 241(2)(a) is met and the thing is not to be forfeited,
destroyed or disposed of under this Bill or any other Act or law.
119
Clause 242 provides for the return of seized things to the person from whom
it was seized, or to the lawful owner of the thing where the
relevant grounds which authorised its seizure no longer apply.
This clause does not prevent the indefinite retention of a thing,
or its disposal or destruction.
Clause 242(4) allows for the return of a thing seized from an
offender in a residential facility or residential treatment facility
to the property of the offender rather than directly into the
possession of the offender.
Clause 243 applies only to things seized at a place other than a residential
facility or residential treatment facility and requires the Chief
Commissioner of Police or the Commissioner, as the case may
be, to make reasonable efforts to serve a retrieval notice on the
owner of the seized thing where the Chief Commissioner of
Police or the Commissioner is no longer authorised to retain the
thing.
Clause 243(4) makes clear that where there have been reasonable
efforts made by the Chief Commissioner of Police to notify the
owner of a thing seized and the thing has not been retrieved, the
Chief Commissioner of Police may treat the thing as if it were
"unclaimed property" under Division 3 of Part 4 of the Victoria
Police Act 2013.
Clause 243(5) makes clear that where there have been reasonable
efforts made by the Commissioner to notify the owner of the
thing and the thing has not been retrieved, the thing is taken to be
forfeited to the Crown and the Minister may dispose of the thing
in any manner the Minister deems fit.
Clause 244 establishes the procedure for an offender or lawful owner of
a thing seized under Part 14 to make an application to the
Magistrates' Court for the return of the thing seized and for the
Magistrates' Court to make an assessment as to whether the thing
is properly retained under clause 241 and whether the thing is
subject to forfeiture, disposal or destruction under this Bill or any
other Act or law.
120
Clause 245 establishes the procedure for the Chief Commissioner of Police
or the Commissioner to make an application to the Magistrates'
Court seeking an order that a thing seized under Part 14 be
destroyed or disposed of. The Magistrates' Court may make
orders depending on its determination. The Magistrates' Court
may order--
• that the thing be forfeited to the Crown and destroyed or
disposed of if the Court is satisfied that the grounds on
which the thing was seized are still met and that the
thing is not reasonably required to be retained; or
• that the thing be returned to its owner if the Court is
satisfied that the Chief Commissioner of Police, or the
Commissioner, do not hold authority to retain the thing
under clause 241 and the thing is not subject to
forfeiture under this Bill or any other Act or law; or
• that the thing be sold and the proceeds of sale be paid to
the owner.
Clause 246 provides that any monies received from the sale or disposal of a
thing under Part 14, unless otherwise ordered by the Magistrates'
Court pursuant to clause 245, be deposited into the Consolidated
Fund. The Consolidated Fund is the government's primary
account that receives all money raised by and granted to the
State.
Clause 247 permits the Chief Commissioner of Police or the Commissioner
to destroy or dispose of a seized thing with the consent of the
owner.
Clause 248 makes clear that supervision officers, specified officers,
community corrections officers and police officers are not liable
for injury or damage caused by the use of force under specified
clauses in the Bill as authorised by the relevant clause.
Part 15--Removal of electronic monitoring
devices and equipment
Clause 249 provides for the application of this Part.
Clause 249(1) provides that this Part applies to an offender who
is subject to a supervision order or interim supervision order
which requires an offender to submit to electronic monitoring, or
authorises the Authority to give directions in relation to the
121
electronic monitoring and such condition ceases to have effect for
one of the reasons listed.
Clause 249(2) clarifies that the power to remove an electronic
monitoring device under Part 15 does not affect powers to
remove electronic monitoring devices under clauses 35(2) or 141.
Clause 250 defines the meaning of officer for the purposes of Part 15.
Clause 251 permits any officer, as defined in clause 250, to remove an
electronic monitoring device from an offender, or place of
residence of an offender, in the circumstances outlined in
clause 251 (1).
Clause 251(2) requires that an officer, other than a police officer
or a police custody officer, may only remove an electronic
monitoring device under this clause upon receiving a direction
to do so by the Commissioner.
Clause 251(3) provides that a police officer may remove, for any
purpose, an electronic monitoring device worn by an offender
who is under arrest on suspicion of having committed an offence.
Clause 252 outlines the procedure for removal of an electronic monitoring
device and, if practicable, requires an officer to inform the
offender that--
• the removal is to occur;
• the offender may consent to the removal; and
• if consent is not given, reasonable force may be used to
remove the device or equipment or, if the case requires,
to enter a place where the offender resides to remove the
device or equipment.
Clause 252(2) allows an officer to use reasonable force to remove
the device or equipment, and to enter a place where the offender
resides to remove the device or equipment in circumstances
where the offender does not consent to the removal.
Clause 253 permits the Commissioner, by instrument, to authorise a specified
employee of the Department of Justice and Regulation, or a
person holding a specified position within the Department of
Justice and Regulation, to exercise the powers of an "officer" for
the purposes of Part 15.
122
Part 16--Management of offenders subject to detention orders,
interim detention orders or emergency detention orders
Clause 254 makes clear that an offender in custody in a prison who is subject
to a detention order, an interim detention order or an emergency
detention order is to be managed under the Corrections
Act 1986 subject to Part 16 of the Bill.
Clause 255 recognises that offenders under clause 255 are not serving a
custodial sentence in respect of any criminal charges for which
they have been convicted. These offenders have served their
sentences and are being held for protective, rather than punitive,
purposes and should be treated as such.
This clause requires that offenders described in clause 254 are
treated in accordance with their status as unconvicted prisoners
subject to the good order and safe custody of the offender and
any other persons serving custodial sentences.
Clause 255(2) requires that an offender described in clause 254,
subject to clause 255(3), not be accommodated or detained in the
same area of the prison as people serving custodial sentences.
Clause 255(3) permits an offender described in clause 254 to be
accommodated or detained with people serving custodial
sentences for the reasons listed.
Clause 255(4) clarifies that this clause does not apply to an
offender mentioned in clause 254 while the offender is on
custody or remand or while serving a custodial sentence (except
for release on parole), during the period of a detention order, an
interim detention order or emergency detention order that has
commenced.
Clause 256 makes clear that the Authority is responsible for reviewing and
monitoring progress in relation to offenders listed in clause 254.
Part 17--Change of name
Clause 257 makes clear that Part 17 of the Bill applies despite anything in the
Births, Deaths and Marriages Registration Act 1996 which
may be contrary to Part 17.
It is intended that the existing processes and requirements for
current post-sentence order offenders will continue to apply
regardless of whether an offender is made subject to a
123
supervision order or interim supervision order because of their
risk of committing a serious sex offence or serious violence
offence, or both.
Clause 258 defines certain terms for the purposes of Part 17.
Clause 259 makes clear that it is an offence for an offender, as defined under
clause 258, or for a another person on behalf of the offender, to
make an application to change the offender's name without first
obtaining the written approval of the Authority. This clause
makes clear that it is an offence to make such an application
without prior written approval from the Authority both within
Victoria and to the responsible authority in another State or
Territory.
Clause 260 outlines when the Authority may approve or refuse to approve a
change of name application.
Clause 260(1) makes clear that the Authority may only approve a
change of name application where it believes that the change of
name is necessary or reasonable in all the circumstances.
Clause 260(2) makes clear that the Authority must not approve a
change of name application if it is satisfied that the change of
name, if registered, would be reasonably likely to be seen as
offensive by a victim of crime or significant sector of the
community, or be used to hinder or evade supervision of the
offender for the period of the supervision order or interim
supervision order.
These provisions ensure that a supervised offender cannot seek to
harm the community by changing their name.
Clause 261 requires a written notice to be provided to the person making a
change of name application by the Authority where the Authority
approves the application. If the offender consents, the Authority
is to provide a copy of the written notice to the Victorian
Registrar.
Clause 262 prohibits the Victorian Registrar from registering a change of
name if the Victorian Registrar knows that--
• the application is made by or on behalf of an offender;
and
• relates to the change of name of the offender; and
124
• is made without a written notice of approval from the
Authority.
Clause 262(2) requires the Victorian Registrar to notify the
chairperson of the Authority in writing when it has refused to
register a name in the circumstances outlined in clause 262(1).
Clause 263 permits the Victorian Registrar to correct the Register if the name
of an offender was changed on the Register because of a change
of name application and that change of name application was not
approved by the Authority under clause 260. This clause is not
intended to limit the operation of section 43 of the Births,
Deaths and Marriages Registration Act 1986.
Clause 264 requires the Secretary to notify the Victorian Registrar of the
name (and any previous names) and other identifying
information, as listed, for any offender subject to a supervision
order, an interim supervision order, a detention order or an
interim detention order, and notify the Victorian Registrar as
soon as practicable of the expiry of the relevant order.
Clause 265 requires the Authority to notify the Secretary in writing of any
application for a change of name received by it, and any approval
of an application for a change of name given under Part 17 of the
Bill.
Part 18--Reports and plans
Division 1--Preparation of assessment reports and
progress reports
Clause 266 empowers the Secretary, by giving written notice to an eligible
offender, to direct that offender to attend a personal examination
or additional assessment for the purposes of the Bill.
Clause 266(2) empowers the Secretary, by giving written notice
to the offender, to vary or revoke a direction given under
subclause (1).
Clause 266(3) sets out the offence for failing to comply with a
direction to attend a medical examination without a reasonable
excuse. This imposes an evidential burden on the offender to
make out a defence of reasonable excuse.
125
Clause 266(4) clarifies that an offender cannot be required by a
direction under clause 266 to submit to a physical examination or
cooperate actively in the conduct of a personal examination. This
is intended to protect the offender's right to privacy and right to
not be subjected to medical experimentation or treatment without
full, free and informed consent.
Clause 267 provides that a medical expert may prepare an assessment report
or progress report in respect of an eligible offender after
conducting a personal examination of the offender.
Clause 267(2) makes it clear that a medical expert can still
prepare an assessment report or progress report if the offender
has not cooperated fully in the personal examination or has not
complied with a direction to attend for a personal examination
under clause 266.
Clause 268 allows a medical expert preparing an assessment or progress
report to seek an additional assessment from another medical
expert for the purposes of preparing a report, regardless of
whether the offender complies with a direction given under
clause 266.
Clause 269 sets out the matters that must be addressed in an assessment
report, including whether or not the eligible offender has a
propensity to commit a serious sex offence or a serious violence
offence (or both) in the future.
Clause 269(2) provides that an assessment report must state the
medical expert's assessment of the risk that the offender will
commit another serious sex offence or serious violence offence,
or both, if released into the community without being subject to a
detention order or supervision order and the reasons for that
assessment.
Clause 269(3) provides that the medical expert may have regard
to any additional assessment obtained under clause 268 in respect
of the offender.
Clause 270 sets out the matters that must be addressed in a progress report,
including any efforts made by the eligible offender since the last
review to address the causes of the sexual or violent offending
behaviour (or both).
126
Clause 270(2) provides that a progress report must state the
medical expert's assessment of the risk that the eligible offender
will commit another relevant offence if released into the
community without a detention order or supervision order and the
reasons for that assessment.
Clause 270(3) provides that the medical expert may have regard
to any additional assessment obtained under clause 268 in respect
of the eligible offender.
Division 2--Disputed reports
Clause 271 provides that the Secretary, the DPP or an offender may dispute
all or part of an assessment report, progress report or any other
report given to the court on the hearing of an application under
the Bill by filing a notice of intention at any time before the
determination of the application.
Filing a notice of intention entitles that party under clause 273 to
an opportunity to lead evidence on the disputed matters and to
cross-examine the author of the report.
Clause 272 applies to disputed reports in the context of applications for an
interim supervision order, or an interim detention order, or an
emergency detention order.
Clause 272(1) provides if a notice of intention to dispute is filed
on an application for an interim supervision order, an interim
detention order or emergency detention order, the court may take
the disputed report into consideration in determining the
application and if it considers appropriate may give the party
disputing the report an opportunity to lead evidence on the
matters in dispute and to cross-examine the author of the report
on the report's contents.
Clause 272(2) provides that if no notice of intention to dispute
under clause 271 is filed on an application for an interim
supervision order, interim detention order or an emergency
detention order, the court must take the report into consideration
and is not required to give any party an opportunity to lead
evidence or cross-examine the author in relation to the report.
Clause 273 applies to disputed reports in the context of applications for any
other order, other than an interim supervision order, interim
detention order or emergency detention order. Clause 273
provides that where a notice of intention is filed under
127
clause 271, the court must not consider the disputed part of the
report unless the party that filed the notice is given the
opportunity to lead evidence on the disputed matters and to
cross-examine the author of the report on its contents.
Division 3--Preparation of treatment and supervision plans
Clause 274 requires the Secretary to prepare a treatment and supervision plan
in respect of an offender when ordered or requested by the court.
Clause 274(2) sets out what must be included in a treatment and
supervision plan, including the treatment and services that will be
offered to the offender and why the treatment and services are
required to help reduce the offender's risk of committing a
relevant offence, whether less restrictive residence options for the
delivery of treatment and services have been tried or considered,
the benefits of delivering the treatment and services in the
residential treatment facility, and a proposed process for the
offender to transition from the residential treatment facility to a
residential facility or another location in the community.
The treatment and supervision plan must be considered by the
court before imposing an intensive treatment and supervision
condition under clause 32. The treatment and supervision plan
will also act as an accountability mechanism when the court
reviews the condition under clause 114, by enabling the court to
consider whether the treatment and services were offered to the
offender.
Clause 275 provides that if the court imposes an intensive treatment and
supervision condition on a supervision order, the Secretary is
required to provide a copy of each treatment and supervision plan
filed with the court to the Authority and all responsible agencies.
Part 19--Restriction and sharing of information
Division 1--Publication
Clause 276 defines publish to mean to disseminate or provide access to the
public or a section of the public by any means.
Clause 277 creates an offence in relation to the publication of certain
material before the court in a proceeding under the Bill unless the
court makes a publication order under clause 278. The material
captured by the offence includes any evidence given in a
128
proceeding under the Bill, including a report prepared in relation
to the offender, and information before the court that might
identify a victim of a serious sex offence or a serious violence
offence committed by the offender, or a person (other than the
offender) who has attended or given evidence in the proceeding.
Clause 277(2) enables members of the police force to disclose the
identity and location of an offender as part of their law
enforcement functions.
Clause 277(3) enables a journalist to publish the identity and
location of an offender if requested by a police officer who
disclosed the information and for the purpose of law enforcement
functions.
The purpose of this clause is to provide a level of protection to
victims and other persons involved in proceedings under the Bill,
such as witnesses. Further, the non-disclosure of evidence
ensures that sensitive information about an offender's risk
assessment and treatment needs is kept confidential, which is
critical for ensuring the continued engagement of offenders with
clinicians.
Clause 278 enables the court to make an order authorising the publication of
any material referred to in clause 277(1) if satisfied that
exceptional circumstances exist.
Clause 278(2) clarifies that nothing in clause 277 prevents the
court from publishing the reasons for a decision to make a
publication order.
Clause 279 enables the court to make an order restricting the publication of
any information that might enable an offender or the offender's
whereabouts to be identified. The court can make this order in
any proceedings under this Bill, and if it is satisfied that it is in
the public interest to do so.
Clause 279(2) specifies that an order under this clause may be
made on the application of the offender or on the court's own
initiative.
The ability to make such an order supports the effective operation
of the scheme by enabling offenders to be placed in suitable
accommodation and to access services safely. An order under
clause 279 in respect of an offender who is subject to a
129
supervision order must be reviewed when that supervision order
is reviewed, pursuant to clause 99(4).
Clause 280 sets out the matters to which the court must have regard when
making an order under clauses 278 or 279, namely whether the
publication would endanger the safety of any person, the interests
of any victims of the offender, the protection of children, families
and the community, the offender's compliance with any order
made under the Bill and the location of the residential address of
the offender.
Clause 281 makes it an offence to contravene an order made under this
Division and sets out the penalty units that apply to this offence.
Division 2--Recording and sharing of information
Clause 282 grants the Secretary power to establish and maintain records of
eligible offenders. Subclause (2) sets out the type of information
which may be included in the records, such as the name and
location of the offender, the sentence currently being served by
the offender and any assessments provided to the Secretary as to
the offender's risk of re-offending.
Clause 283 grants the Secretary power to request additional information in
respect of an offender from the Governor of a prison within the
meaning of the Corrections Act 1986, the Commissioner, the
DPP, a Regional Manager within the meaning of the Corrections
Act 1986, and an officer within the meaning of Part 9 of the
Corrections Act 1986.
This request must only be made for one or more of the purposes
which are outlined in clause 283(2), including the preparation of
reports and plans in relation to the offender and the carrying out
of any of the Secretary's functions or duties under this Bill.
Clause 283(3) makes it compulsory for a person to provide
information to the Secretary if a request is made under
clause 283(1).
Clause 283(4) permits the Secretary to make the information
provided available for use by a person who is preparing a report
in accordance with clause 283(2).
130
Clause 284 permits information sharing between relevant persons in certain
circumstances. Information may be used and disclosed--
• between relevant persons where doing so is necessary to
enable that relevant person to carry out functions under
this Bill or a relevant Act; or
• is specifically authorised by or required by legislation;
or
• authorised by the person to whom the information
relates; or
• is necessary to reduce the risk of an offender
committing a serious sex offence or a serious violence
offence or both, or an offence referred to in Schedule 3,
or engaging in any behaviour or conduct that threatens
the safety of any person (including the offender); or
• or is necessary to lessen or prevent a threat to the life,
health, safety or welfare of any person.
Clause 284(2) makes it an offence for a person who is or has
been a relevant person to use or disclose any information
obtained in carrying out a function under this Bill, unless
authorised by subclause (1) or (3).
Clause 284(3) relates to information given to the Authority that is
not disclosed in a decision or reasons of the Authority. Such
information may be used or disclosed by a relevant person if they
believe on reasonable grounds that it is necessary for the
administration of this Bill, for the preparation or participation in
any court or tribunal proceeding or inquest, to reduce the risk of
an offender committing a serious sex offence or a serious
violence offence or both or an offence referred to in Schedule 3,
or to lessen or prevent a threat to the life, health, safety or welfare
of any person.
Clause 284(4) makes it clear that the offence set out in
clause 277, which prohibits the publication of certain material
that is before a court, does not apply to the disclosure of
information under this section.
Clause 284(5) makes it clear that nothing in clause 284 limits or
affects any requirement imposed by any other provision of this
Bill for the Secretary to notify the Authority or the Adult Parole
Board of any matter.
131
Clause 284(6) defines what is a relevant Act and who is a
relevant person for the purposes of this clause. Notably, the
Governor in Council can make regulations under clause 349 of
the Bill prescribing other persons and bodies as a relevant person
for the purposes of information sharing under the Bill. The
persons or bodies prescribed in the regulations can be anyone and
are not limited to the class of persons or bodies identified in this
subclause.
Clause 285 requires a relevant person to develop guidelines relating to
accessing of information under clause 284 in order to restrict
access to information to the greatest extent possible without
interfering with the purpose of this Bill or other defined relevant
Acts.
Relevant person for the purposes of this clause is defined in
clause 285(2). This is a smaller subset of relevant persons in
comparison to clause 284.
Clause 286 authorises the Secretary to disclose any information relating to an
offender obtained by the Secretary in carrying out a function
under the Bill to a responsible person who is a guardian or who is
otherwise legally responsible for the care of the offender.
Clause 287 authorises the Secretary to disclose to a person who is providing
health care to an offender information about any condition of a
supervision order or interim supervision order that may be
relevant to the provision of health care to the offender.
Clause 287(2) provides examples of a body providing health
care.
The sharing of information does not impose any responsibility on
the health care provider for the supervision of the offender, but is
for the purpose of assisting them to provide the services in a way
that is not inconsistent with the conditions in the order.
Clause 288 relates to section 4 of the Judicial Proceedings Reports
Act 1958, which prohibits the publication of any information
likely to identify the victim of an alleged sexual offence.
Clause 288 clarifies that the disclosure of information (including
a victim's identity) for the purposes of the administration of this
Bill or an order made under this Bill or an order or sentence made
or imposed by a court under the Sentencing Act 1991 or for the
purposes of an application for an order under this Bill or the
132
Sentencing Act 1991 will not be a contravention of the Judicial
Proceedings Reports Act 1958.
The exemption would apply to information related to the
administration of community correction orders, sentences of
imprisonment, parole orders and orders made under this Bill
(including assessments of suitability and applications for those
orders and, if made, the administration of those orders). For
example, it would apply to existing orders, assessments as to
whether such orders should be applied for and therapeutic
treatment of offenders subject to those orders.
Clause 289 sets out an exemption from the Freedom of Information
Act 1982.
The Freedom of Information Act 1982 applies to the Authority,
subject to the exemption set out in clause 289. Clause 289
recognises that certain types of information or documents held by
the Authority should be treated confidentially, in particular
information or documents that relate to decisions made about an
individual regarding the monitoring and administration of a court
order, or that relate to information that is prohibited from
publication or disclosure under Part 19. It is important that the
integrity of this confidential and sensitive information is upheld
to support the effective assessment, treatment and management of
complex offenders.
Specifically, clause 289(1) provides that the Freedom of
Information Act 1982 does not apply to a document of the
Authority to the extent to which it discloses information that
relates to--
• a victim or victims of an offender, including any victim
submission made under this Bill;
• a person in relation to the person being, or having been,
an eligible offender or subject to a supervision order, an
interim supervision order, a detention order, an interim
detention order or an emergency detention order ;
• a proceeding under this Bill that is or was before a
court;
• a decision of the Authority;
• decision-making processes of the Authority in relation
to a particular matter;
133
• any post-sentence order imposed under this Bill
including any conditions attached to an order;
• any directions or instructions given under this Bill to an
offender;
• the location, operation or administration of a residential
facility or a residential treatment facility, or the
management of offenders at those facilities;
• the management under the Corrections Act 1986 of an
offender subject to a detention order, interim detention
order or emergency detention order;
• the management of an offender subject to a supervision
order or an interim supervision order; or
• any other information prohibited from disclosure under
Part 19, unless that information is permitted to be
disclosed by a publication order made by a court under
clause 278.
Clause 289(2) clarifies the interaction between clause 289 and
Part IV of the Freedom of Information Act 1982, which relates
to exempt documents. Subclause (2) states that nothing in
section 289 limits or affects the operation of Part IV of the
Freedom of Information Act 1982 in relation to documents of
the Authority to which that Act applies.
Clause 289(3) defines document and document of the Authority
for the purposes of this provision.
Part 20--Post Sentence Authority
Division 1--Continuation of Authority
Clause 290 provides that the Post Sentence Authority established under the
Serious Sex Offenders (Detention and Supervision) Act 2009
is to continue.
The Post Sentence Authority is an independent statutory body
corporate and public entity responsible for monitoring and
reviewing the progress of offenders who are subject to detention
and supervision orders under the Bill.
134
Clause 291 sets out the functions of the Authority, which are--
• to monitor compliance with and administer the
conditions of a supervision orders or interim supervision
orders; and
• to give directions and instructions to an offender in
accordance with any authorisation given to the
Authority under a supervision order or an interim
supervision order; and
• to make decisions to ensure the carrying into effect of
the conditions of supervision orders and interim
supervision orders; and
• to make recommendations to the Secretary in relation to
applying to a court to review the conditions of
supervision orders and interim supervision orders; and
• to review and monitor the progress of offenders on
detention orders and interim detention orders; and
• to review and monitor the progress of offenders on
emergency detention orders; and
• to review coordinated services plans for eligible
offenders who are the subject of an application for a
supervision order or a detention order; and
• to review coordinated services plans for offenders who
are subject to a supervision order or an interim
supervision order; and
• to review and monitor the progress of offenders on
supervision orders and interim supervision orders; and
• to approve or disapprove change of name applications
under clause 260; and
• to report on the performance of functions and powers
under this Bill in its annual report under clause 316; and
• any other function conferred on the Authority by or
under this Bill or any other Act.
135
Clause 291(2) states that the Authority may inform itself in any
manner it thinks fit and is not bound by the rules of evidence.
Clause 291(3) states that the Authority is not bound by the rules
of natural justice.
The exemptions in subclauses (2) and (3) assist the Authority to
respond quickly and effectively when performing its functions,
including managing offenders subject to a supervision order.
While the Authority is not bound by the rules of natural justice,
the Bill includes provisions that confer a range of procedural
rights on offenders and other persons in specific contexts.
The Authority must comply with these statutory provisions when
performing the relevant functions or exercising the relevant
powers. In addition, there are procedures for seeking a court
review of a detention order or a supervision order or the
conditions of a supervision order.
In terms of statutory procedural rights, by way of example,
Part 11 includes provisions containing a range of procedural
rights that apply when the Authority is giving directions to an
offender. In summary, those provisions state that the Authority
must notify an offender of any directions or instructions that it
gives in relation to the offender (clause 146), the offender may
make submissions within 21 days of receiving notice (clause 147)
and is entitled to be heard at an Authority meeting (clause 148),
the offender may inspect documents relied on by the Authority
(clause 151), the Authority must take into account the offender's
submissions (clause 149) and the Authority must give reasons for
the decision it made after hearing from the offender or reasons
for any other decision at the offender's request (clause 150).
It is also relevant to note that the Authority is a public authority
under the Charter of Human Rights and Responsibilities
Act 2006. Section 38(1) of the Charter of Human Rights and
Responsibilities Act 2006 states that it is unlawful for a public
authority to act in a way that is incompatible with a human right
or, in making a decision, to fail to give proper consideration to a
relevant human right. The Authority will comply with its
obligations under section 38(1) when exercising or not
exercising, or deciding to exercise or not exercise, any power
under the Bill (or any other Act).
136
As such, clauses 146 to 151 of the Bill set out the minimum
procedural requirements with which the Authority must comply.
These minimum requirements do not prevent the Authority from
taking additional procedural steps in the exercise of its statutory
powers, as appropriate to the particular circumstances of an
individual offender. In some instances the application of the
Charter of Human Rights and Responsibilities Act 2006 may
make it appropriate to observe additional procedural safeguards.
Clause 292 provides that the Authority has all the powers necessary to
perform its functions, including any power conferred on it by
this Bill or any other Act.
Clause 293 provides for the membership of the Authority.
Clause 293(1) provides that the Authority consists of no more
than 10 people appointed by the Governor in Council, on the
recommendation of the Minister, being a chairperson, a deputy
chairperson, up to 3 full-time members and up to 5 sessional
members.
Clause 293(2) sets out qualification requirements for members.
Members must be a person who--
• has been a Judge of the High Court, Supreme Court
(or an equivalent court of another State or a Territory),
the Federal Court, the Family Court or the County Court
(or an equivalent court of another State or a Territory);
• has been a magistrate of the Magistrates' Court (or the
equivalent court of another State or a Territory);
• is an Australian lawyer of at least 10 years' experience;
or
• is an Australian lawyer of at least 5 years' experience; or
• is a community representative who has expertise and
experience relevant to the functions of the Authority.
Clause 294 provides for the appointment of the chairperson and deputy
chairperson of the Authority.
Clause 294(1) provides that, on the recommendation of the
Minister, the Governor in Council must appoint one of the
members referred to in clause 293(2)(a), (b) or (c) to be
chairperson of the Authority. That is, a member who has been a
137
Judge of the High Court, Supreme Court (or an equivalent court
of another State or a Territory), the Federal Court, the Family
Court or the County Court (or an equivalent court of another
State or a Territory), or a magistrate of the Magistrates' Court
(or the equivalent court of another State or Territory) or an
Australian lawyer of at least 10 years' experience.
Similarly, clause 294(2) provides that, on the recommendation of
the Minister, the Governor in Council must appoint one of the
members referred to in section 293(2)(a),(b) or (c) to be deputy
chairperson of the Authority.
Clause 294(3) provides that if the chairperson is unable to
perform the duties of office or is absent, or if the office of the
chairperson is vacant, the deputy chairperson must act as the
chairperson. While acting as the chairperson, the deputy
chairperson has all the functions, powers and duties of the
chairperson.
Clause 295 provides for the acting arrangements for the chairperson, deputy
chairperson and members of the Authority.
Clause 295(1) provides that the Governor in Council, on the
recommendation of the Minister, may appoint an acting
chairperson of the Authority if the chairperson and deputy
chairperson are unable to perform the duties of chairperson, are
absent or the office of the chairperson and the deputy chairperson
are vacant. The acting chairperson must be a member of the
Authority referred to in section 293(2)(a),(b), (c) (that is, a
former Judge, a former magistrate or an Australian lawyer of at
least 10 years' experience) or a person who is qualified to be a
member under that provision.
Clauses 295(2) and 295(3) provide that the Governor in Council,
on the recommendation of the Minister, may appoint an acting
deputy chairperson of the Authority or an acting member of the
Authority (on a full-time or sessional basis) if the deputy
chairperson or a member respectively is unable to perform the
duties of office, is absent or if the office of deputy chairperson or
member respectively is vacant. These sections provide that the
qualifications required for a person appointed as acting deputy
chairperson or acting member are the same as required for
appointment to those roles.
Clause 295(4) provides that a person appointed to act has the
functions, powers and duties of the relevant position while acting.
138
Clause 296 provides for the terms of conditions of office.
Clause 296(1) provides that a member of the Authority holds
office on the terms and conditions specified in the member's
instrument of appointment and may hold office for a term not
exceeding five years (subject to reappointment arrangements and
maximum term of appointment).
Clause 296(2) provides that a member is entitled to be paid
remuneration, allowances and expenses determined by the
Governor in Council and set out in the instrument of
appointment.
Clause 296(3) provides that a member is eligible for
reappointment.
Clause 296(4) provides that a member may hold office for a
maximum of 9 years, whether appointed for one or more terms
and whether or not those terms are consecutive.
Clause 296(5) provides the Public Administration Act 2004
(other than Part 3), applies to a member of the Authority in
respect of the office of member.
Clause 296(6) clarifies that an officer within the meaning of the
State Superannuation Act 1988 who is appointed to the
Authority continues to be an officer for the purpose of that Act.
Clause 297 sets out the arrangements for the chairing of meetings of the
Authority.
Clause 297(1) requires the chairperson to preside at meetings of
the Authority if the chairperson is present.
Clause 297(2) provides that in the absence of the chairperson, the
deputy chairperson is to preside at meetings of the Authority if
the deputy chairperson is present.
Clause 297(3) provides that in the absence of the chairperson and
deputy chairperson, the acting chairperson or acting deputy
chairperson is to preside at meetings of the Authority.
Clause 298 provides for the meetings of the Authority.
Clause 298(1) provides that the Authority is to meet at the times
and places fixed by the chairperson.
139
Clause 298(2) provides that questions of law that arise before the
Authority (and determining whether a question is a question of
fact or of law) are to be decided by the person presiding at the
meeting of the Authority.
Clause 298(3) provides that a meeting of the Authority in respect
of a question under this clause is to be constituted by either the
chairperson, or acting chairperson, or the deputy chairperson or
acting deputy chairperson and at least 2 other members of the
Authority.
Clause 298(4) provides that the decision of a majority of
members at a meeting is the decision of the Authority, subject to
clause 298(2).
Clause 298(5) provides that the presiding member has a second
or casting vote if there is an equality of votes.
Clause 299 provides that an act or a decision of the Authority is not invalid
merely because of a vacancy in the office of a member, or a
defect or irregularity in the appointment of a member.
Clause 300 sets out when the office of a member is vacant, provides for the
resignation of members and for the removal of members from
office in certain circumstances.
Clause 301 sets out the staffing and contracting powers of the Authority.
Clause 301(1) enables the Authority to enter into Part agreements
or arrangements for the use of services of any employee of a
public entity or public service body to assist the Authority to
perform its functions.
Clause 301(2) requires that the Secretary provide any employees
of the Department of Justice and Regulation and any other
assistance to the Authority that is necessary to assist it to perform
its functions.
Clause 301(3) provides that any employees provided to assist the
Authority to perform its functions are subject to the directions of
the Authority.
Clause 301(4) provides that the Authority may engage
contractors and agents to assist the Authority to perform its
functions.
140
Clause 302 provides that a member may sign and issue orders and documents
on behalf of the Authority if the Authority has heard and
determined a matter. Such an order has effect as if it were signed
by all members of the Authority.
Division 2--Notices to produce or attend
Clause 303 empowers the Authority to issue written notices to compel the
production of documents and other things or the attendance of
witnesses at a meeting of the Authority. These powers ensure
that the Authority is able to access the information required to
effectively monitor offenders on orders under the Bill.
Clause 303(1) enables the Authority, for the purpose of
performing its functions in relation to managing offenders who
are subject to an order under the Bill, to serve a written notice on
a person requiring the person to produce specified documents or
things and/or attend a meeting of the Authority to give evidence.
Clause 303(2) provides that such a notice must be in a prescribed
form and contain the information set out in subclause (2)(b) and
must be served in accordance with clause 306. It is not intended
that this provision will require the Supreme Court, the County
Court, the Magistrates' Court or any of their officers or staff to
provide information to the Authority.
Clause 304 outlines when a person may dispute a notice to produce or to
attend served by the Authority.
Clause 304(1) provides that a person who has been served with a
notice to produce or to attend may make a claim to the Authority
that the person has or will have a reasonable excuse for failing to
comply with the notice, or that a document or other thing
specified in a notice is not relevant to the subject matter of the
meeting.
Clause 304(2) provides that, without limiting what may be a
reasonable excuse, it will be a reasonable excuse for a person to
fail to comply with a notice by refusing to give the information to
the Authority if the information--
• might tend to incriminate the person or make the person
liable to a penalty; or
141
• is the subject of parliamentary privilege or legal
professional privilege or client legal privilege or public
interest immunity; or
• is prohibited from disclosure by a court order; or
• is prohibited from disclosure by a provision of another
enactment.
Clause 305 sets out that the Authority, by further notice served on a person,
may vary or revoke a notice served under clause 303 on its own
initiative or if it is satisfied that the person's claim under
clause 304 is made out. Any notice varying or revoking a notice
to produce or to attend must be served in accordance with the
process set out in clause 306.
Clause 306 outlines the procedure by which a notice to produce or attend
(or a notice varying or revoking such a notice) must be served
on a person.
Clause 306(1) requires all notices to be served within a
reasonable time, being not less than 7 days before the date on
which the person is required to comply with the notice.
Clause 306(2) enables the Authority to require immediate
attendance of a person under certain circumstances, for example
if the Authority considers on reasonable grounds that a delay is
likely to result in evidence being lost or destroyed, or if the
person consents.
Clause 306(3) provides for methods of service, including
electronic service.
Clause 307 sets out powers in relation to documents and other things
produced to the Authority.
Clause 307(1) enables the Authority, a member of the Authority
or an employee assisting the Authority in the performance of its
functions that is authorised by the Authority to inspect, retain
(for as long as reasonably necessary for the purposes of this Bill)
and copy a document or other thing obtained under a notice to
produce.
Clause 307(2) requires the Authority, in specified circumstances,
to return a document or thing if it ceases to be reasonably
necessary for the purposes of the Bill.
142
Clause 308 provides that the power to compel attendance or production under
clause 303 does not limit or affect the power of the Authority
to--
• give an offender a direction or instruction; or
• require an offender to attend a meeting under
clauses 148 or 171; or
• require information for the purpose of annual reporting
under clause 318; or
• require information from responsible agencies under
clause 334.
That is, powers conferred on the Authority under clause 303 are
to operate concurrently with other powers of the Authority
provided under the Bill.
Clause 309 provides for the appearance of people at a meeting of the
Authority by audio visual link.
Clause 309(1) enables the Authority to direct a person to attend a
meeting of the Authority by audio visual link on its own initiative
or at the request of the other person.
Clause 309(2) provides that appearance by way of audio visual
link is only permissible if the relevant facilities are adequate for
the person required to attend and all members of the Authority to
see and hear all participants.
Clause 309(3) provides that the Authority has the flexibility to
revoke or vary a direction to conduct a meeting via audio visual
link at its discretion or upon a request by the person required to
attend the meeting.
Clause 309(4) provides that a person who appears before the
Authority via audio visual link is taken to have attended the
meeting of the Authority.
Clause 310 sets out the process for serving a notice to attend on a person who
is serving a custodial sentence or is in custody on remand.
Clause 310(1) provides that if a notice to attend a meeting of the
Authority is served on a person in prison or in a police gaol, the
Authority may give a written direction to the Governor of the
prison or the officer in charge of the goal that requires the person
to be bought to a place with audio visual facilities to enable them
143
to appear before the Authority or to be brought before the
Authority.
Clause 310(2) provides that such a direction must be in a
prescribed form (if any).
Clause 311 gives the Authority power to take evidence on oath or by
affirmation.
Clause 311(1) empowers the Authority to require a person
attending a meeting of the Authority to give evidence or answer
questions on oath or by affirmation.
Clause 311(2) enables a member of the Authority, or an
authorised employee assisting the Authority, to administer the
oath or affirmation to a person.
Clause 311(3) sets out the process for administering an oath or
affirmation via audio visual link.
Clause 312 sets out the offence for failing to comply with a notice to produce
or attend a meeting of the Authority without reasonable excuse.
The penalty for the offence is 30 penalty units or imprisonment
for 3 months. Section 72 of the Criminal Procedure Act 2009
deals with the evidential burden of proof in relation to this
offence.
Clause 313 sets out the offence for a person who is duly served with a notice
to attend a meeting of the Authority to refuse, without reasonable
excuse, to take an oath or affirmation or refuse to answer a
question, when required. The penalty for the offence is
30 penalty units or imprisonment for 3 months.
Clause 313(2) provides that a person does not commit this
offence unless, before the person is required to take the oath or
make the affirmation or answer the question, the Authority
informs the person that refusal or failure to do so without
reasonable excuse is an offence. Section 72 of the Criminal
Procedure Act 2009 deals with the evidential burden of proof in
relation to this offence.
144
Division 3--Miscellaneous matters
Clause 314 provides for the protection of participants at meetings of the
Authority.
Clause 314(1) states that a member of Authority has, in the
performance of their functions at a meeting of the Authority, the
same protection and immunity as a Judge of the Supreme Court
has in the performance of the Judge's duties as Judge.
Clause 314(2) states that an employee assisting the Authority
under clause 301 to perform its functions or a contractor or an
agent engaged by the Authority under that section has, in the
performance of the employee's or agent's functions at a meeting
of the Authority, the same protection and immunity as a Judge of
the Supreme Court has in the performance of the Judge's duties
as Judge.
Clause 314(3) states that a person legally representing another
person at a meeting of the Authority has the same protection and
immunity as an Australian legal practitioner has in representing a
party in a proceeding in the Supreme Court.
Clause 314(4) states that a person who gives information or
evidence, or produces a document or other thing, at a meeting of
the Authority has the same protection and immunity as a witness
has in a proceeding in the Supreme Court.
Clause 315 provides that a member of the Authority is not personally liable
for anything done or omitted to be done in good faith in the
exercise of a power or the performance of a function under the
Bill or regulations or in the reasonable belief that the act or
omission was in the exercise of a power or the performance of a
function under the Bill or regulations. It provides that any
liability resulting from an act or omission that would otherwise
attach to a member of the Authority attaches instead to the
Authority.
Clause 316 provides for the preparation of an annual report by the Authority
for tabling in Parliament. By virtue of this provision, the
Authority will be required to prepare a detailed annual report on
the operation of the Bill and the performance of functions and
powers by the Authority and relevant Departments and agencies
under the Bill. These comprehensive reporting requirements will
act as a mechanism to increase transparency and accountability
145
for action and the operation of the legislative framework under
the Bill.
Clause 316(1) requires the Authority to give to the Minister an
annual report concerning the operation of the Bill that includes
the information or matters listed in paragraphs (a) to (v) of that
clause. Further, clause 316(1)(v) enables regulations to be made
that prescribe additional matters for reporting in the annual
report.
Clause 316(2) requires the Minister to table the annual report in
both Houses of Parliament.
Clause 317 outlines other types of reports which are required to be completed
by the Authority.
Clause 317(1) requires the Authority to give to the Minister,
when required, a report and recommendations concerning a
person who, at the time of the report, is the subject of an order
under the Bill.
Clause 317(2) provides that the Authority must give the Minister
a report on a matter stated in the requirement and relating to the
activities of the Authority or the operation of the Bill when
required by the Minister.
Clause 318 provides that the Authority may require information to be
provided to it by a responsible agency, the DPP and other
relevant Departments or agencies for the purpose of preparing its
annual report, and that these entities must provide the specified
information. It is not intended that this provision will require the
Supreme Court, the County Court, the Magistrates' Court or any
of their officers or staff to provide information to the Authority.
Division 4--Security at Authority premises
Clause 319 sets out the functions of a security officer under the Bill, namely
to provide security at premises where the Authority meets or
where employees assisting the Authority are located, and to assist
a police officer in the performance of the police officer's duties at
premises where the Authority meets.
146
Clause 320 provides for the search and seizure powers of security officers.
Clause 320(1) permits a security officer to carry out a garment
search, a pat-down search or a scanning search of an offender if
doing so is necessary for the safety of any person or to monitor
compliance with a supervision order or an interim supervision
order, or if the security officer suspects the offender of behaviour
or conduct associated with an increased risk of the offender
re-offending or contravening the conditions of the order.
Clause 320(2) provides that a pat-down search must be carried
out by a person of the same sex as the offender being searched, to
the extent practicable.
Clause 320(3) limits a search to continuing only for as long as
required to achieve the purpose of the search.
Clause 320(4) permits a security officer to use reasonable force
to carry out a search if necessary.
Clause 320(5) permits a security officer to seize any thing found
in the possession or under the control of the offender in carrying
out a search if the seizure is necessary for the safety of any
person or if the thing relates to behaviour or conduct associated
with an increased risk of the offender re-offending or
contravening the conditions of the order.
Clause 321 provides that immediately before a search or seizure is carried
out, a security officer must inform the offender that the search or
seizure is to occur, and that reasonable force may be used to
assist in the carrying out of the search or seizure.
Clause 322 provides that a security officer may give directions to an offender
to do or not do anything that is necessary for the safety of any
person.
Clause 322(2) permits a security officer to use reasonable force
to compel an offender to obey a direction if necessary to prevent
a person being killed or seriously injured, or to prevent serious
damage to property.
Clause 322(3) provides that for the purposes of clause 322(2) a
security officer may use any weapon (other than a firearm) in
accordance with an exemption granted under section 8B of the
Control of Weapons Act 1990.
147
Clause 322(3) permits a security officer, when compelling an
offender to obey a direction, to apply an authorised instrument of
restraint to the offender if necessary to prevent a person being
killed or seriously injured, or to prevent serious damage to
property.
Clause 323 permits a security officer, in the course of performing the
functions of a security officer under the Bill, to arrest an offender
without a warrant if the security officer believes on reasonable
grounds that the offender has committed an indictable offence.
The security officer, after arresting the offender, must deliver the
offender to police as soon as practicable and may detain the
offender in a suitable place until the offender is delivered to
police.
Clause 324 requires a security officer who seizes any thing under this
Division to report the seizure to the Commissioner as soon as
practicable. The Commissioner is required to record the details
of the thing seized in the register referred to in clause 238.
Clause 325 requires a security officer who uses forces against an offender, or
applies an instrument of restraint against an offender, to report
the use of force or the use of the instrument as soon as practicable
to the Commissioner.
Clause 326 makes clear that Division 6 of Part 14 of the Bill applies, with
any necessary modifications, to a thing seized under the current
Division. Division 6 of Part 14 deals with general provisions
relating to seized things. It outlines, amongst other things,
obligations to create a register of seized things, obligations to
provide a receipt to the offender for the thing seized, how the
seized thing is to be dealt with, when and why a seized thing may
be retained, when and why a seized thing may be returned, when
and how a seized thing may be destroyed or disposed of and
powers of the Magistrates' Court to make determinations in
relation to seized things. It is intended that these obligations,
with any necessary modifications, apply to things seized by a
security officer.
Clause 327 makes clear that a security officer is not liable for any injury or
damage caused as the result of use of force, or the use of an
instrument of restraint in accordance with this Division.
148
Part 21--Cooperation and Coordination between
responsible agencies
Clause 328 makes clear that this Part applies in addition to any other function
or power of a responsible agency under this Bill. Clause 3
defines a responsible agency as the Chief Commissioner of
Police, the Secretary, the Secretary to the Department of Health
and Human Services or another person or body prescribed as a
responsible agency.
Clause 329 describes the principle of shared responsibility within which a
responsible agency is required to act in the delivery of services to
an eligible offender who is subject to an application for a
supervision order or a detention order, or an offender who is
subject to a supervision order or an interim supervision order.
The principle of shared responsibility seeks to create a
collaborative approach to work between responsible agencies to
provide holistic and efficient service delivery in recognition of
the complex needs of eligible offenders and offenders.
Responsible agencies are required to provide reasonable
assistance and support to another responsible agency, share
information and identify and take steps to resolve issues relating
to the delivery of services.
Clause 330 requires responsible agencies to jointly establish a panel, or more
than one panel, in order to perform their functions under this Part.
Clause 331 requires responsible agencies to agree to a coordinated services
plan for each eligible offender or offender, who is--
• subject of an application for a supervision order or a
detention order; and
• subject to a supervision order or an interim supervision
order.
Clause 332 outlines the required contents of the coordinated services plan
referred to in clause 331.
Clause 332(1) sets out the requirement for a coordinated services
plan for an eligible offender who is the subject of an application
for a supervision order or detention order. The coordinated
services plan must set out what services the eligible offender will
have access to in the event that a supervision order or detention
order is made.
149
Clause 332(2) sets out the requirement for a coordinated services
plan for an offender who is the subject of a supervision order or
an interim supervision order. Paragraphs (a) - (e) outline what
information is to be contained in the coordinated services plan.
This information is to appear in addition to the information
required pursuant to clause 16(2) which sets out requirements for
the contents of a supervision order. In addition to the risk factors
identified in relation to the offender and what services will be
available to the offender in order to address the risk factors
identified, the coordinated services plan requires agreement
between responsible agencies for the provision of the services
needed.
Clause 332(3) sets out the requirement for a coordinated services
plan for an offender who is subject to a supervision order or an
interim supervision order which contains an intensive treatment
and supervision condition. In these circumstances, in addition to
the matters set out in clause 332(2), the coordinated services plan
must set out the treatment and services to be provided to the
offender to assist the offender to transition into the community
from the residential treatment facility.
Clause 333 requires responsible agencies to provide the Authority with a
copy of the coordinated services plan as soon as practicable after
the relevant order has been made.
Clause 334 requires the Authority to review a coordinated services plan
received under clauses 333 or 335 and provides the Authority
with powers to request information in relation to the plan and
requires responsible agencies to comply with the request. This
clause does not limit the power of the Authority to serve a notice
under clause 303 which deals with the powers of the Authority to
compel the production of documents, attendance of witnesses and
other things.
Clause 335 creates review obligations in relation to coordinated services
plans.
Clause 335(1) requires responsible agencies to review each
coordinated services plan within the time limits stipulated and to
confirm, revise or revoke the plan.
Clause 335(2) permits responsible agencies to review and
confirm or revise the coordinated services plan for an offender
who--
150
• becomes subject to an emergency detention order, or
ceases to be subject to an emergency detention order; or
• is subject to a supervision order or interim supervision
order and either a condition for intensive treatment and
supervision is imposed on the order or is revoked, or, a
condition for intensive treatment and supervision is due
to expire.
Clause 335(3) requires responsible agencies to provide a copy of
a confirmed or revised plan to the Authority, or notice that the
coordinated services plan has been revoked.
Clause 336 clarifies when a coordinated services plan expires.
Clause 337 makes clear that a responsible agency is able to seek the services
or advice of any person or body when fulfilling its functions
under this Part.
Clause 338 permits a responsible agency to delegate, by instrument, any
function or power of the responsible agency under this Part, in
the performance of its functions under this Part. A responsible
agency may not delegate its delegation power under this clause.
Subclauses (1)(a) and (1)(b) list the employees or class of
employees a responsible agency may delegate to under this
clause. This clause does not limit clause 346 which deals with
delegation by the Commissioner.
Clause 339 makes clear that there is no intention under this Part to create in
any person, any legal right, or to give rise to any cause of civil
action. This clause also makes clear that there is no intention to
affect in any way the interpretation of any Act or law in force in
Victoria.
Part 22--General
Clause 340 lists the persons who are authorised to act as specified officers.
Clause 341 requires the Supreme Court or the County Court to make a sex
offender registration order under the Sex Offenders Registration
Act 2004 in respect of an offender on whom a custodial sentence
has been imposed for a serious sex offence. A serious sex
offence is defined in Schedule 1 to this Bill.
Clause 341(2) stipulates when the court must make a sex
offender registration order.
151
Clause 342 sets out the process for serving documents under this Bill subject
to clause 306. Clause 306 sets out the procedure for service for a
notice to produce or a notice to attend issued by the Authority.
Clause 342(1) provides that a document to be served by or under
the Bill may be served--
• in the case of an offender, by delivering it personally to
the offender; and
• in the case of the Secretary, the Adult Parole Board, the
Authority or the DPP, by post as detailed in this
subclause.
Clause 342(2) permits the court to make an order for substituted
service on an offender in the circumstances specified.
Clause 342(3) allows for service of a document that is not
required to be served on an offender personally to be served by
post to the offender or in the manner stipulated to the offender's
legal representative.
Clause 343 clarifies that the parties to any proceedings on an application
under this Bill must bear their own costs except where a court
determines that exceptional circumstances exist.
Clause 344 allows the Secretary to prepare a certificate of available resources
in relation to an offender for the purposes of this Bill. The
certificate of available resources must outline what facilities or
services are available to the offender as outlined in clause 344(2).
The purpose of a certificate of available resources is to ensure the
court has all relevant and available information before it when
considering whether to make or refuse to make a proposed order.
Clause 344(3) makes clear that the certificate may contain
information in relation to any other appropriate options available
if there are no facilities or services available.
Clause 344(4) permits the court to require evidence from the
Secretary or to require a further certificate of available resources
to clarify or expand on the information contained in the initial
certificate.
Clause 345 permits the Secretary to delegate, by instrument, any of its
powers and functions under this Bill to any employee of the
Department of Justice and Regulation. The Secretary may not
delegate the power of delegation under this clause.
152
Clause 346 permits the Commissioner to delegate, by instrument, any of its
powers and functions under this Bill to any employee of the
Department of Justice and Regulation. The Commissioner may
not delegate the power of delegation under this clause.
Clause 346 permits the Minister to make grants available to organisations
which promote the welfare of offenders or provide treatment or
help of any other kind for offenders subject to an order under the
Bill.
Clause 348 sets out the timeline for review of this Bill and the timeline for
the report of the review to be laid before the Legislative Council
and Legislative Assembly.
Clause 349 sets out the powers of the Governor in Council to make
regulations in relation to this Bill.
Clause 349(1) empowers the Governor in Council to make
regulations for or with respect to any matter or thing required or
permitted by the Bill to be prescribed or necessary to be
prescribed to give effect to the Bill.
Clause 349(2), without limiting clause 349(1), allows the
Governor in Council to make regulations in relation to, or
incidental to, the seizure of a thing pursuant to Part 14. This
includes, but is not limited to, the form of, and the information to
be included in receipts and registers, and processes for the return
of seized things.
Clause 349(3) discusses the nature of the regulations the
Governor in Council may make, including the application,
context and purpose of such regulations. The Governor in
Council may also impose a penalty not exceeding 20 penalty
units for contravention of the regulations.
Part 23--Repeal and transitional provisions
Clause 350 repeals the Serious Sex Offenders (Detention and Supervision)
Act 2009.
Clause 351 provides for Schedule 4 which sets out savings and transitional
provisions.
153
Part 24--Consequential amendment of other acts
Clause 352 amends sections 4(4)(cd) and (ce) and clauses 28 and 29 of
Schedule 2 to the Bail Act 1977 to replace references to the
Serious Sex Offenders (Detention and Supervision) Act 2009
with references to the Bill. Sections 4(4)(cd) and (ce) require
bail to be refused, unless the accused shows cause why detention
in custody is not justified, if an accused is charged with an
indictable offence and either that offence is alleged to have been
committed while the accused was subject to a supervision order
or interim supervision under the Serious Sex Offenders
(Detention and Supervision) Act 2009, or at any time during the
bail hearing the accused is subject to such an order. Clauses 28
and 29 of Schedule 2 also list indictable offences committed in
these circumstances. Bail must be refused for a person accused
of a Schedule 2 offence unless the accused shows compelling
reason why detention in custody is not justified.
The amendments made by clause 352 will ensure that the
presumption against bail in section 4(4)(cd) and (ce), and the
application of the show compelling reasons test in Schedule 2,
will apply to offenders subject to a supervision order or interim
supervision order under the Bill.
Clause 353 amends section 4(2)(j) of the Civil Procedure Act 2010 to
substitute the reference to the Serious Sex Offenders (Detention
and Supervision) Act 2009 with a reference to the Bill. This is
necessary to ensure that the Civil Procedure Act 2010 does not
apply to proceedings under the Bill, notwithstanding that
proceedings under the Bill are civil in nature (see clause 6).
Clause 354 amends the Corrections Act 1986 to insert a new Division 2,
"Custody of the Commissioner", which is comprised of new
sections 6G, 6H and 6I, in Part 1A of that Act, which apply to
supervision order and interim supervision order offenders on
whom the court has imposed an intensive treatment and
supervision condition. Offenders who are in the legal custody of
the Commissioner are not deemed to be in government custody
as defined in the Sex Offenders Registration Act 2004 and are
required to maintain reporting obligations imposed in accordance
with that Act.
Section 6G outlines when a person enters the legal custody of the
Commissioner.
154
Section 6G(1) makes clear that a person who is placed on a
supervision order with an intensive treatment and supervision
condition, and is in the physical custody of a person acting under
lawful authority on behalf of the Commissioner, or in the
physical custody of a person acting under lawful authority on
behalf of the Commissioner in a residential treatment facility, is
deemed to enter the legal custody of the Commissioner.
Section 6G(2) makes clear that a person who enters the legal
custody of the Commissioner pursuant to section 6G(1) is
deemed to remain in that custody until that custody ceases under
Part 1A of the Corrections Act 1986.
Section 6G(3) makes clear that a person who enters the legal
custody of the Commissioner pursuant to section 6G(1) and who
is allowed to be absent from a residential treatment facility
remains in the custody of the Commissioner while absent. This
section is subject to new section 6H.
Section 6H outlines when a person ceases to be in the legal
custody of the Commissioner.
Section 6H(1) makes clear that a person is no longer in the
custody of the Commissioner if one of the events listed occurs.
This includes circumstances where legal custody is lawfully
transferred from the Commissioner to another person, including
the Secretary of the Department of Justice and Regulation.
Section 6H(2) clarifies that a person is "authorised" under
section 6H(1)(e) if the person is authorised under a condition of
the supervision order, by a direction of the Authority or by an
officer under the Serious Offenders Act 2018.
Section 6I deals with the powers of a court of a tribunal in respect
of a person in the legal custody of the Commissioner.
Section 6I(1) makes clear that a person who is in the legal
custody of the Commissioner under Part 1A of the Correction
Act 1986 remains in the custody of the Commissioner when
brought before a court or a tribunal, subject to any lawful order
made by the court of the tribunal.
Section 6I(2) makes clear that the fact of the Commissioner's
custody over the person appearing before the court of the tribunal
does not affect the ability of the court or the tribunal to make
orders as it sees fit in relation to the person.
155
Clause 355 makes further consequential amendments to the Corrections
Act 1986.
Clause 355(1) substitutes a new definition for Post Sentence
Authority into section 3(1) of the Corrections Act 1986 which
makes it clear that the term means the Post Sentence Authority
continued in existence under clause 290 of the Bill.
Clause 355(1) also substitutes a new definition for sexual
offence, which means (except in section 56AC of that Act) an
offence referred to in Schedule 1 to the Bill. The definition of
sexual offence is used for various purposes in the Corrections
Act 1986. For example, under section 74AAB of that Act, a
prisoner can only be released on parole in respect of a sexual
offence by the Serious Violent Offender of Sexual Offender
Parole division of the Adult Parole Board.
Clause 355(2) inserts a new heading into Part 1A of the
Corrections Act 1986 to reflect the new legal custody provisions
introduced by clause 354 (see above).
Clauses 355(3) and (4) amend section 6(e) of the Corrections
Act 1986, which defines an order of imprisonment for the
purposes of the legal custody provisions in Part 1A of that Act.
Under section 6A(1) of the Corrections Act 1986, a person is
deemed to enter the legal custody of the Secretary when an order
of imprisonment is made in relation to the person and either a
person acting under lawful authority on behalf of the Secretary
takes physical custody of the person or a person at a prison acting
under lawful authority on behalf of the Secretary receives the
person into prison. Under section 6(e), an order of imprisonment
includes a detention order or interim detention order under the
Serious Sex Offenders (Detention and Supervision) Act 2009.
Clause 355(3) substitutes the reference to the Serious Sex
Offenders (Detention and Supervision) Act 2009 with a
reference to the Bill. Clause 355(4) inserts a new section 6(f) to
include a reference to an emergency detention order. This
ensures that an order of imprisonment will include detention
orders, interim detention orders and emergency detention orders
made under the Bill.
Clause 355(5) amends section 6A(4) of the Corrections
Act 1986 to include reference to an emergency detention order
and to substitute reference to the Serious Sex Offenders
(Detention and Supervision) Act 2009 for the Serious
Offenders Act 2018. Under section 6A(4) a person in respect of
156
whom a detention order or an interim detention order is made
under the Serious Sex Offenders (Detention and Supervision)
Act 2009 is deemed to be in the custody of the Secretary
following a person acting under the lawful authority of the
Secretary taking physical custody of the person or a person at a
prison acting under the lawful authority of the Secretary receives
the person into prison.
Clause 355(6) amends section 6B(1)(a) of the Corrections
Act 1986 to include reference to an emergency detention order
and to substitute reference to the Serious Sex Offenders
(Detention and Supervision)Act 2009 for the Serious
Offenders Act 2018. Under 6B(1)(a) person ceases to be in the
custody of the Secretary on the expiration of the person's
sentence of imprisonment, or if the person is serving more than
one sentence of imprisonment, on the expiration of all of those
sentences of imprisonment, unless the person is also in that
custody under a detention order or an interim detention order
under the Serious Sex Offenders (Detention and Supervision)
Act 2009.
Clause 355(7) amends section 6B(1) of the Corrections
Act 1986 to insert new paragraphs 6B(1)(ab) and (ac) to clarify
when a person ceases to be in the legal custody of the Secretary
following the expiration of an emergency detention order. In
addition to the circumstances set out in 6B(1)(a) as amended by
clause 355(6) of the Bill, a person ceases to be in the custody of
the Secretary on the expiration of a detention order or an interim
detention, or an emergency detention, order under the Bill if the
person is not subject to any further order of imprisonment and the
person is not serving a sentence of imprisonment.
Clause 355(8) amends section 8A(2) of the Correction Act 1986
to insert new section 8A(2)(ab) to include reference to the
Commissioner's responsibilities under the Serious Offenders
Act 2018.
Clause 355(9) amends the note at section 12(4) of the
Corrections Act 1986 to delete reference to the section 158F of
the Serious Sex Offenders (Detention and Supervision)
Act 2009 and to include reference to section 340 of the Serious
Offenders Act 2018 which similarly lists persons authorised to
act as a specified officer.
157
Clause 355(10) amends section 30A(1) of the Corrections
Act 1986--
• so that the section refers to Schedule 1 and 2 of the
Serious Offenders Act 2018. Section 30A(1)(b) of the
Corrections Act 1986 defines the meaning of criminal
act of violence for the purposes of section 30A which
deals with the provision of information about an
offender to a victim.
• to substitute the definition of detention order to include
reference to an emergency detention order and to
replace reference to the Serious Sex Offenders
(Detention and Supervision) Act 2009 with the
Serious Offenders Act 2018.
• to omit the definition of relevant offence. A relevant
offence is defined by the Serious Sex Offenders
(Detention and Supervision) Act 2009 as an offence
listed in Schedule 1 of that Act, which lists serious
sexual offences only. The concept of a relevant offence
is now redundant as it does not include serious violence
offences. It is accordingly now superseded by section 8
of the Serious Offenders Act 2018 which defines an
eligible offender.
• to substitute Serious Offenders Act 2018 for Serious
Sex Offenders (Detention and Supervision) Act 2009
in the definition of supervision order.
• to substitute part of the definition of victim to include
an emergency detention order and applications for an
emergency detention order.
Clause 355(11) amends section 30A(2AA) of the Corrections
Act 1986 to replace "relevant offence" with "an offence referred
to in Schedule 1, 2 or 3 of the Serious Offenders Act 2018"
thereby broadening the types of offences in relation to which the
Secretary may provide information to a person included on the
victim's register.
Clause 355(12) substitutes the contents of section
30A(2AA)(ba)(i) of the Corrections Act 1986 to include
references to an emergency detention order and replace reference
to the Adult Parole Board with reference to the Post Sentence
Authority and to replace reference to the Serious Sex Offenders
158
(Detention and Supervision) Act 2009 with reference to Part 11
of the Serious Offenders Act 2018.
Clause 355(13) amends section 30A(2AC) of the Corrections
Act 1986 to replace a reference to section 184 of the Serious Sex
Offenders (Detention and Supervision) Act 2009 with
reference to section 279 of the Serious Offenders Act 2018.
Section 279 of the Serious Offenders Act 2018 mirrors the
provision in the Serious Sex Offenders (Detention and
Supervision) Act 2009 and allows a court to make a
determination about how and where identifying information
about an offender may or may not be published.
Clause 355(13) amends section 30A(2AC)(b) of the Corrections
Act 1986 to replace a reference to sections 182 and 186 of the
Serious Sex Offenders (Detention and Supervision) Act 2009
with reference to sections 277 and 281 of the Serious Offenders
Act 2018. Sections 277 and 281 of the Serious Offenders
Act 2018 mirror the provisions in the Serious Sex Offenders
(Detention and Supervision) Act 2009 and create offences in
relation to the publication of certain information.
Clause 355(14) amends paragraphs 30C(a)(i) and (c) of the
Corrections Act 1986 to include reference to an emergency
detention order.
Clause 355(15) amends section 30G(b) of the Corrections
Act 1986 to refer to the person against whom an offence referred
to in Schedule 1 or 2 to the Serious Offenders Act 2018 was
committed for which the offender is or was subject to a
supervision order, a detention order or an emergency detention
order, or an application for one of those orders.
Clause 355(16) amends section 55K of the Corrections Act 1986
to insert a new section 55K(c) which extends the function of a
security officer to include those functions listed in any other Act.
Clause 355(17) amends section 78F of the Corrections Act 1986
in the definition of specified officer to replace reference to the
Serious Sex Offenders (Detention and Supervision) Act 2009
with reference to the Serious Offenders Act 2018.
Clause 355(18) amends section 78G(4) of the Corrections
Act 1986 to replace reference to the Serious Sex Offenders
(Detention and Supervision) Act 2009 with reference to the
Serious Offenders Act 2018.
159
Clause 355(19) amends section 79L(10)(f) of the Corrections
Act 1986 to replace reference to the Serious Sex Offenders
(Detention and Supervision) Act 2009 with reference to the
Serious Offenders Act 2018.
Clause 355(20) amends section 84H(1)(b) of the Corrections
Act 1986 to substitute the contents of that section to make clear
that a prisoner who is a person who is subject to an emergency
detention order, detention order or interim detention order within
the meaning of the Serious Offenders Act 2018 may not be
directed to work. This is in recognition of the status of these
prisoners as unconvicted prisoners and their rights to be treated in
accordance with this status, differentiated from the status of a
prisoner serving a custodial sentence.
Clause 355(21) amends section 104E of the Corrections
Act 1986 so that reference to the Serious Sex Offenders
(Detention and Supervision) Act 2009 in the definition of
monitored person and the definition of specified officer is
replaced substituted to refer to the Serious Offenders Act 2018.
Clause 355(22) amends section 104F of the Corrections
Act 1986 and substitutes "section 16(2)(b) of the Serious Sex
Offenders (Detention and Supervision) Act 2009" with
"section 31(12) of the Serious Offenders Act 2018".
Clause 355(23) amends section 104K(3) of the Corrections
Act 1986 to substitute reference to section 119 of the Serious
Sex Offenders (Detention and Supervision) Act 2009 with
reference to Part 11 of the Serious Offenders Act 2018. Section
104K(3) is therefore amended so that any officer giving direction
to a monitored person at a community corrections centre to
ensure the taking of accurate photographs, is taken to have given
a lawful direction of the Authority under Part 11 of the Serious
Offenders Act 2018.
Clause 355(24) amends section 104L of the Corrections
Act 1986 to substitute reference to section 16(2)(d) of the
Serious Sex Offenders (Detention and Supervision)Act 2009
with reference to section 31(10) of the Serious Offenders
Act 2018.
Clause 355(25) amends sections 104N(1) and 104N(2) of the
Corrections Act 1986 to substitute reference to the Serious Sex
Offenders (Detention and Supervision)Act 2009 with reference
to the Serious Offenders Act 2018.
160
Clause 355(26) amends the definition of Corrections legislation
in section 104ZX of the Corrections Act 1986 to substitute the
reference to the Serious Sex Offenders (Detention and
Supervision) Act 2009 with reference to the Serious Offenders
Act 2018.
Clause 355(27) amends section 104ZY(4) of the Corrections
Act 1986 to substitute the definition of sexual offence so that the
definition means an offence referred to in Schedule 1 to the
Serious Offenders Act 2018, or item 5 or 6 of Schedule 3 to that
Act.
Clause 355(28) amends Schedule 5 to the Corrections Act 1986
in order for item 6(2)(b) to refer to section 301 of the Serious
Offenders Act 2018 and for item 8(5) and (6) to refer to the
Serious Offenders Act 2018, in substitution of superseded
references to the Serious Sex Offenders (Detention and
Supervision) Act 2009 as persons authorised to use and disclose
information. This amendment is consequential upon the
enactment and coming into operation of the Justice Legislation
Amendment (Terrorism) Bill 2018.
Clause 356 updates the definition of Post Sentence Authority in section 3(1)
of the Criminal Organisations Control Act 2012 to refer to the
Post Sentence Authority continued in existence under clause 290
of the Bill.
Clause 357 amends the definition of original jurisdiction in section 3 of the
Criminal Procedure Act 2009 by substituting paragraph (f) so
that it will mean a proceeding for a related offence that is a
summary offence heard under clause 176 of the Bill. Paragraph
(f) currently refers to section 172AC of the Serious Sex
Offenders (Detention and Supervision) Act 2009, which is
substantively replicated in clause 176 of the Bill.
Clause 358 makes consequential amendments to the Disability Act 2006.
Clause 358(1) updates the definition of Post Sentence Authority
in section 3(1) of the Disability Act 2006 so that it means the
Post Sentence Authority continued in existence under clause 290
of the Bill.
Clause 358(2) amends section 152(2)(f) of the Disability
Act 2006, which provides for a person with a disability to be
admitted to a residential treatment facility (within the meaning of
that Act) if the Secretary is satisfied that the person is subject to a
161
supervision order or interim supervision order under the Serious
Sex Offenders (Detention and Supervision) Act 2009 which
enables compulsory treatment to be provided. Clause 358(2)
substitutes the reference to the Serious Sex Offenders
(Detention and Supervision) Act 2009 with a reference to the
Bill. This makes it clear that offenders subject to a supervision
order or interim supervision order under the Bill which enables
compulsory treatment may be admitted to a residential treatment
facility under the Disability Act 2006.
Clause 359 makes consequential amendments to the Firearms Act 1996.
Clause 359(1) amends the definition of a prohibited person under
section 3(1) of the Firearms Act 1996 by inserting a new
paragraph (cc) to class a person who is subject to a supervision
order or an interim supervision order under the Bill as a
prohibited person. This applies regardless of whether the
supervision order or the interim supervision order does or does
not suspend, cancel or revoke a permit or authority under the
Firearms Act 1996. As noted above, under clause 39 the court
may, in a supervision order or an interim supervision order,
cancel an offender's firearms authority, revoke an offender's
weapons approval or revoke the application of a weapons
exemption to an offender. Being classed as a prohibited person
has a range of consequences under the Firearms Act 1996.
For example, a prohibited person commits an offence if they
possess, carry or use a firearm, a silencer or any other prescribed
item (see section 5 of the Firearms Act 1996).
Clause 359(2) amends section 46(1) of the Firearms Act 1996,
which requires the Chief Commissioner of Police to immediately
cancel a licence on becoming aware that the licence holder is a
prohibited person, except in certain circumstances. Clause
359(2) inserts a reference to paragraph (cc)(ii) of the definition
of a prohibited person into section 46(1) as an exception to this
requirement. The effect of this is that the Chief Commissioner of
Police is not required to immediately cancel the licence of a
person who is a prohibited person because the person is subject to
a supervision order or an interim supervision order where that
supervision order or that interim supervision order did not
suspend, cancel or revoke their licence. However, if a person is a
prohibited person because the person is subject to a supervision
order or an interim supervision order that did suspend, cancel or
revoke their licence, the Chief Commissioner of Police will be
162
required to immediately cancel their licence. This ensures that
there is a consistent approach between the Bill and the Firearms
Act 1996.
Clause 359(3) inserts new section 53(4)(ac) into section 53(4) of
the Firearms Act 1996 to require a firearm or cartridge
ammunition surrendered or seized as a consequence of the
making of a supervision order or an interim supervision order
under the Bill to be disposed of to a licensed firearms dealer in
line with the timeframes stipulated.
Clauses 359(4), (5) and (6) amend section 189 of the Firearms
Act 1996, which provides for applications to be deemed not to be
a prohibited person under that Act.
Clause 359(4) inserts new section 189(1B) into section 189 of the
Firearms Act 1996 to allow a person who is a prohibited person
by virtue of being subject to a supervision order or an interim
supervision order to make an application to not be deemed a
prohibited person or to be deemed so for limited purposes only.
This only applies where the supervision order or the interim
supervision order did not suspend, cancel or revoke the person's
licence.
Clause 359(5) inserts new section 189(3)(c) into section 189 of
the Firearms Act 1996 to expand the meaning of court in
section 189(3) to include the court that made the supervision
order or the interim supervision order in the case of the person to
whom new section 189(1B) applies.
Clause 359(6) inserts new section 189(6) into section 189 of the
Firearms Act 1996 to make it clear that an application made by
a person under new section 189(1B) to not be deemed a
prohibited person cannot be heard by the Court until any appeal
under the Bill in relation to the supervision order or the interim
supervision order (as the case requires) has been determined.
Clause 360 amends paragraph (ka) of the definition of a law enforcement
agency in section 3(1) of the Health Records Act 2001 to update
the reference to the Post Sentence Authority so that it refers to
the Authority which is continued in existence under clause 290 of
the Bill.
163
Clause 361 substitutes the reference to Division 1 of Part 13 of the Serious
Sex Offenders (Detention and Supervision) Act 2009 in
section 8(2)(j) of the Open Courts Act 2013 with a reference to
Division 1 of Part 19 of the Bill, which relates to the suppression
of publication of certain information.
Clause 362 substitutes a new paragraph (la) in the definition of law
enforcement agency in section 3 of the Privacy and Data
Protection Act 2014 to update the reference to the Post Sentence
Authority so that it refers to the Authority which is continued in
existence under clause 290 of the Bill. A law enforcement
agency is, in certain circumstances, exempt from complying with
some of the information privacy principles (see section 15 of the
Privacy and Data Protection Act 2014).
Clause 363 makes consequential amendments to section 22(1)(ab) of the
Public Prosecutions Act 1994, which sets out the functions of
the Director of Public Prosecutions. Under sections 22(1)(ab)(iii)
and (iv), these functions include taking over and conducting any
proceedings in respect of a summary offence which has been
transferred to the Supreme Court or the County Court under
section 172AB of the Serious Sex Offenders (Detention and
Supervision) Act 2009 or which is to be heard and determined
by the Supreme Court or the County Court under section 172AC
of the Serious Sex Offenders (Detention and Supervision)
Act 2009.
Clause 363 amends subparagraphs (iii) and (iv) to confirm that
these functions apply in respect of the Bill. Specifically, the
references to sections 172AB and 172AC of the Serious Sex
Offenders (Detention and Supervision) Act 2009 are
substituted with references to clauses 175 and 176 of the Bill
respectively. Clauses 175 and 176 replicate sections 172AB and
172AC of the Serious Sex Offenders (Detention and
Supervision) Act 2009.
Clause 364 makes consequential amendments to the Sentencing Act 1991.
Clause 364(1) amends section 3(1) of the Sentencing Act 1991
to update the definition of Post Sentence Authority so that it
means the Post Sentence Authority continued in existence under
clause 290 of the Bill.
164
Clause 364(2) amends section 5(2BD)(a) of the Sentencing
Act 1991. Section 5(2BD)(a) prevents a court, when sentencing
an offender, from having regard to the fact that the offender is
subject to an order under the Serious Sex Offenders (Detention
and Supervision) Act 2009. However, if relevant to the
conditions of any sentence, a court may have regard to any
conditions imposed on that order and any directions or
instructions given by the Authority. Clause 364(2) substitutes the
reference to the Serious Sex Offenders (Detention and
Supervision) Act 2009 with a reference to the Bill and updates
the references relating to instructions and directions given by the
Post Sentence Authority to refer to instructions or directions
given under Part 11 of the Bill (which deals with the power of the
Authority to give directions and instructions to offenders who are
subject a supervision order or interim supervision order).
Clauses 364(3), (4), (5) and (6) amend section 10AB of the
Sentencing Act 1991. Section 10AB applies to the sentencing of
an offender in respect of an offence against section 160 of the
Serious Sex Offenders (Detention and Supervision) Act 2009,
which relates to contraventions of a supervision order under that
Act. Section 10AB requires that the court must impose a term of
imprisonment of at least 12 months for an intentional or reckless
contravention of a restrictive condition of a supervision order.
A court is not required to impose this sentence if a special reason
exists under section 10A of the Sentencing Act 1991.
Clause 364(3) substitutes a new heading to section 10AB of the
Sentencing Act 1991 to make it clear that the section relates to
the contravention of a supervision order or interim supervision
order under the Bill.
Clause 364(4) amends section 10AB(1) of the Sentencing
Act 1991 to substitute the reference to section 160 of the Serious
Sex Offenders (Detention and Supervision) Act 2009 with a
reference to clause 169 of the Bill. Clause 169, which mirrors
section 160 of the Serious Sex Offenders (Detention and
Supervision) Act 2009, makes it an offence to contravene a
supervision order or interim supervision order. This amendment
means that the mandatory sentencing requirement will apply to
an offender who contravenes a restrictive condition of a
supervision order or an interim supervision order under
section 169 of the Bill.
165
Clause 364(5) amends section 10AB(2) of the Sentencing
Act 1991 to update the language from "failing to comply with" to
"contravening" a restrictive condition of a supervision order for
consistency of terminology in relation to clause 169 of the Bill.
Clause 364(5) also inserts a reference to an interim supervision
order as a relevant type of order in respect of which the
mandatory sentencing requirement applies.
Clause 364(6) substitutes a new section 10AB(3) of the
Sentencing Act 1991 so that section 10AB adopts the definitions
of interim supervision order, restrictive condition and
supervision order that are used in the Bill, rather than referring to
the definitions used in the Serious Sex Offenders (Detention
and Supervision) Act 2009.
Clause 365 makes consequential amendments to the Sex Offenders
Registration Act 2004.
Clause 365(1) amends section 11(9) of the Sex Offenders
Registration Act 2004, which currently requires the court to
make a sex offender registration order in accordance with
section 6B of the Serious Sex Offenders (Detention and
Supervision) Act 2009. Clause 365(1) replaces the reference to
section 6B of the Serious Sex Offenders (Detention and
Supervision) Act 2009 with clause 341 of the Bill. As noted
above, clause 341 of the Bill requires the court to make a sex
offender registration order for an offender in specified
circumstances. Clause 341 replicates the substance of section 6B
of the Serious Sex Offenders (Detention and Supervision)
Act 2009.
Clause 365(2) amends section 16(5) of the Sex Offenders
Registration Act 2004. Section 16(5) requires a registrable
offender who is residing in a residential facility as a condition of
a supervision order under the Serious Sex Offenders (Detention
and Supervision) Act 2009 to report to the Chief Commissioner
of Police on the day specified by the Chief Commissioner.
Clause 365(2) inserts a reference to a residential treatment
facility into section 16(5) and replaces the reference to the
Serious Sex Offenders (Detention and Supervision) Act 2009
with a reference to the Bill so that this reporting requirement
applies to offenders residing in a residential facility or residential
treatment facility under the Bill.
166
Clause 365(3) amends section 61C(3)(b) of the Sex Offenders
Registration Act 2004, which requires the Chief Commissioner
of Police to consult with the Commissioner for Corrections prior
to publishing certain information about a registrable offender
who is subject to an order under the Serious Sex Offenders
(Detention and Supervision) Act 2009. The amendment
replaces the reference to orders made under the Serious Sex
Offenders (Detention and Supervision) Act 2009 with a
reference to orders made under the Bill. This makes it clear that
the consultation requirement applies to offenders subject to a
supervision order, an interim supervision order, a detention order
or an interim detention order under the Bill.
Clause 365(4) amends sections 70J of the Sex Offenders
Registration Act 2004. Section 70J requires an application for
registration of a change of an offender's name to be made under
and in accordance with the Serious Sex Offenders (Detention
and Supervision) Act 2009 if a registrable offender is also
subject to a supervision order, a detention order or an interim
order under the Serious Sex Offenders (Detention and
Supervision) Act 2009. Clause 365(4) replaces references in
sections 70J(1) and (2) to the Serious Sex Offenders (Detention
and Supervision) Act 2009 with a reference to the Bill. This is
necessary to ensure that an offender subject to a supervision
order, an interim supervision order, a detention order or interim
detention order under the Bill is required to follow the process set
out in Part 17 of the Bill if the offender seeks to change their
name.
Clause 366 amends section 8(2) of the Surveillance Devices Act 1999.
Section 8(1) of that Act makes it an offence to knowingly install,
use or maintain a tracking device to determine the location of a
person or object without consent, subject to specified exemptions
set out in section 8(2). Section 8(2)(aa) currently provides that
the offence does not apply to the installation, use or maintenance
of a tracking device pursuant to an order made under the Serious
Sex Offenders (Detention and Supervision) Act 2009.
Clause 366 substitutes a new section 8(2)(aa) to update the
reference to orders made under the Serious Sex Offenders
(Detention and Supervision) Act 2009 to instead refer to orders
made under the Bill. This makes it clear that the installation, use
or maintenance of a tracking device pursuant to an order made
under the Bill is exempt from the operation of the offence in
167
section 8(1) of the Surveillance Devices Act 1999. This is
necessary to ensure that the electronic monitoring of offenders
pursuant to an order under the Bill does not constitute an offence
(for example, electronic monitoring may be required pursuant to
clauses 29, 32, 33 or 130).
Clause 367 amends sections 11(9)(b), 14A(2)(b) and 14D(4)(b) of the
Supreme Court Act 1986. These sections provide that certain
aspects of the general approach to the commencement, hearing
and determination of civil appeals in the Court of Appeal do not
apply to appeals under the Serious Sex Offenders (Detention
and Supervision) Act 2009. Specifically, section 11(9)(b) of the
Supreme Court Act 1986 prevents the Rules of the Supreme
Court from providing that a single Judge of Appeal may
constitute and exercise all the jurisdiction and power of the Court
of Appeal in relation to appeals under the Serious Sex Offenders
(Detention and Supervision) Act 2009. Section 14A(2)(b) of
the Supreme Court Act 1986 provides that an applicant is not
required to obtain permission (known as "leave") from the Court
of Appeal in order to commence an appeal in that Court under the
Serious Sex Offenders (Detention and Supervision) Act 2009.
Section 14D(4)(b) of the Supreme Court Act 1986 prevents the
Court of Appeal from determining an application for leave to
appeal without an oral hearing of the parties, where the appeal is
brought under the Serious Sex Offenders (Detention and
Supervision) Act 2009.
Clause 367 replaces the reference to the Serious Sex Offenders
(Detention and Supervision) Act 2009 in sections 11(9)(b),
14A(2)(b) and 14D(4)(b) with a reference to the Bill. This is to
ensure that appeals under the Bill will be determined by two or
more Judges of Appeal, may be brought as of right (that is,
without requiring leave), and will not be determined without an
oral hearing of the parties. These are important safeguards for
offenders.
Clause 368 amends section 86(1) of the Transport (Compliance and
Miscellaneous) Act 1983, which contains definitions for the
purposes of Part VI of that Act. Clause 368 substitutes paragraph
(cia) of the definition of category 2 offence to refer to an offence
against the Bill, except for clauses 277 or 281. Paragraph (cia)
currently refers to an offence against the Serious Sex Offenders
(Detention and Supervision) Act 2009, which is repealed by
clause 350 of the Bill. The effect of this amendment is that an
168
offence against the Bill (except clauses 277 or 281) will be a
category 2 offence. This has consequences under Part VI of the
Transport (Compliance and Miscellaneous) Act 1983. For
example, under section 169I of that Act, a licensing authority
may take action against the holder of a driver accreditation
(including suspending or cancelling the accreditation) if the
holder of the accreditation has been found guilty of a category 2
offence. Offences against 277 and 281 of the Bill, which make it
an offence to publish certain information, are excluded from
being a category 2 offence.
Clause 369 makes consequential amendments to the Working with
Children Act 2005, which assists in protecting children from
sexual or physical harm by ensuring that those people who work
with, or care for, children undergo a screening process. Unless
an exemption applies, people without a working with children
check cannot work directly with children especially where that
work is unsupervised.
Clause 369(1) amends section 3(1) of the Working with
Children Act 2005 to substitute the references to the Serious
Sex Offenders (Detention and Supervision) Act 2009 in the
definition of detention order and in the definition of supervision
order with a reference to the Bill. Clause 369(1) also inserts a
new definition, emergency detention order, into section 3(1) of
the Working with Children Act 2005 and defines it to mean an
emergency detention order within the meaning of the Bill.
Clause 369(2) inserts new section 12(1)(ca) into section 12(1) of
the Working with Children Act 2005 so that an application in
respect of a person who is subject to an emergency detention
order becomes a category 1 application for the purposes of that
Act. There are three types of applications under the Working
with Children Act 2005 - category 1, category 2, and category 3.
Pursuant to section 12(2) of the Working with Children
Act 2005, the Secretary to the Department of Justice must refuse
to give an assessment notice on a category 1 application.
Clause 369(3) inserts new section 20(2)(db) into section 20(2) of
the Working with Children Act 2005 so that a person becoming
subject to an emergency detention order is a relevant change in
circumstances for the purpose of notification under section 20(1)
of that Act.
169
Clause 369(4) substitutes clause 6(c) of Schedule 2 (Category B
offences) of the Working with Children Act 2005 to include
new clause 6(c) which refers to the Serious Sex Offenders
(Detention and Supervision) Act 2009 and exempts certain
offences against that Act so that they are not considered category
B offences. Clause 369() also inserts a new clause 6(ca) to
include offences against the Serious Offenders Act 2018 as
category B offences, with the exceptions listed.
Clause 369(5) substitutes clause 6(d) of Schedule 2 (Category B
offences) of the Working with Children Act 2005 to include a
new clause 6(d). The new clause 6(d) is the same except that it
inserts reference to the Serious Offenders Act 2018 and exempts
certain sections of that Act, and inserts further sections from the
Serious Sex Offenders (Detention and Supervision) Act 2009
exempting these sections from the operation of clause 6(d) of
Schedule 2 of the Working with Children Act 2005.
Clause 369(6) substitutes clause 2.5(c) of Schedule 3
(Obligations and orders and offences) of the Working with
Children Act 2005 to include a new clause 2.5(c) which adds
furthers sections of the Serious Sex Offenders (Detention and
Supervision) Act 2009 as exempted clauses for the purpose of
clause 2 of Schedule 3 of the Working with Children Act 2005.
Clause 369(6) also inserts a new clause 2.5(ca) which includes
offences against the Serious Offenders Act 2018 as offences
relevant to clause 2 of Schedule 3 of the Working with Children
Act 2005, with the exceptions listed.
Clause 369(7) substitutes clause 2.5(d) of Schedule 3
(Obligations and orders and offences) of the Working with
Children Act 2005 to include a new clause 2.5(d). The new
clause 2.5(d) is the same except that it inserts reference to the
Serious Offenders Act 2018 and exempts certain sections of that
Act, and inserts further sections from the Serious Sex Offenders
(Detention and Supervision) Act 2009 exempting these sections
from the operation of clause 2.5(d) of Schedule 3 of the Working
with Children Act 2005.
Clause 370 amends section 28LAE(1) of the Wrongs Act 1958, which
provides for the application of Part VBAA of that Act. Part
VBAA concerns awards of damages for non-economic loss in
respect of mental harm related to the death or injury of persons
subject to certain forms of detention, for example a prisoner.
170
Section 28LAE(1)(a)(iii) provides that Part VBAA applies to
damages awards if the mental harm was caused by the death or
injury of a person who was at the relevant time the subject of a
detention order or interim detention order within the meaning of
the Serious Sex Offenders (Detention and Supervision)
Act 2009. Clause 356 inserts a new paragraph (iv) into
section 28LAE(1)(a) to also refer to a person subject to a
detention order, an interim detention order or an emergency
detention order under the Bill. The effect of this is to extend the
application of Part VBAA of the Wrongs Act 1958 to damages
awards in relation to the death or injury of a person subject to a
detention order, an interim detention order or an emergency
detention order under the Bill. It is necessary to retain the
reference to orders made under the Serious Sex Offenders
(Detention and Supervision) Act 2009 to preserve the
application of Part VBAA of the Wrongs Act 1958 to deaths or
injuries sustained while the offender was subject to a detention
order or an interim detention order under the Serious Sex
Offenders (Detention and Supervision) Act 2009, for example
prior to that Act's repeal under clause 350 of the Bill.
Clause 371 makes consequential amendments to the Victims' Charter
Act 2006.
Clause 371(1) amends section 3(1) of the Victims' Charter
Act 2006, which contains definitions for the purposes of that Act.
The current definition of detention order is substituted so that it
means a detention order or interim detention order within the
meaning of the Bill, and a new definition of emergency detention
order is inserted to mean an emergency detention order within
the meaning of the Bill. The definition of Post Sentence
Authority is also substituted so that it means the Post Sentence
Authority continued in existence under clause 278 of the Bill.
Clause 371(1) also substitutes the reference to the Serious Sex
Offenders (Detention and Supervision) Act 2009 in the
definition of supervision order with a reference to the Bill.
These definitions are necessary for the purposes of section 17 of
the Victims' Charter Act 2006. That section provides that
persons included on the victims register established under the
Corrections Act 1986 may be provided with certain information
about offenders, and may make submissions to the Authority in
relation to offenders in certain circumstances.
171
Clause 371(2) inserts a reference to an emergency detention
order in section 17(4) of the Victims' Charter Act 2006.
Section 17(4) provides for persons included on the victims
register to make submissions to the Authority for consideration
when determining any instructions or directions given to an
offender. This is in accordance with clauses 153 and 154 of the
Bill. Section 17(4) currently provides for submissions in relation
to offenders subject to a supervision order, interim supervision
order, detention order or interim detention order. The
amendment made by clause 371(2) will provide for submissions
in relation to an offender subject to an emergency detention
order.
Clause 371(3) amends the note at the foot of section 17(4) of the
Victims' Charter Act 2006 to substitute the reference to
sections 129 and 130 of the Serious Sex Offenders (Detention
and Supervision) Act 2009 with a reference to clauses 153
and 154 of the Bill, which deal with victims' submissions to the
Authority and how the Authority is to deal with the submissions.
These clauses mirror sections 129 and 130 of the Serious Sex
Offenders (Detention and Supervision) Act 2009.
Clause 372 repeals Part 24 of the Bill on 25 March 2020.
The repeal of Part 24 does not affect in any way the continuing
operation of the amendments made by that Part (see section 15(1)
of the Interpretation of Legislation Act 1984).
Schedule 1--Serious sex offences
Defines serious sex offences in clause 3 by listing the offences that are to be
considered a serious sex offence.
Schedule 2--Serious violence offences
Defines serious violence offences in clause 3 by listing the offences that are
to be considered a serious violence offence.
Schedule 3--Additional offences not to be committed as core
conditions of supervision order
Lists the offences that an offender must not commit as a core condition of a
supervision order as listed in clause 31(4) and in addition to other core
conditions listed in clause 31.
172
Schedule 4--Savings and transitional provisions
Clause 1 sets out the definition of commencement day and superseded Act
for the purposes of the savings and transitional provisions set out
in the Schedule.
Clause 2 provides that the schedule does not effect of take away from the
Interpretation of Legislation Act 1984.
Subclause 2(2) provides that the savings and transitional
provisions set out in this schedule apply despite anything to the
contrary in another provision of the Bill.
Clause 3 confirms that, subject to clause 4, the eligibility provision,
clause 8 of the Bill, applies irrespective of whether an
supervision order, an interim supervision order, a detention order
or an interim detention order was made under the Bill or the
superseded Act.
Clause 4 provides that a supervision order, a detention order or an interim
order made under the superseded Act, in force immediately
before the commencement day of the Bill, continues in force
under the superseded Act until the earliest of the following
occurs--
• the order expires by coming to the end of the period of
the order;
• a court revokes the order under the Bill;
• upon the commencement of another order made under
the Bill that replaces the order;
• on deportation or removal of the offender from
Australia under the Migration Act of the
Commonwealth; or
• on the death of the offender.
Subclause 4(2) provides that the superseded Act and Regulations
will continue to apply to an order continued under subclause (1)
subject to subclauses (3), (4) and (5).
Subclause (3) provides that an supervision order continued under
subclause (1) will be subject to the core conditions set out in
clause 31 of the Bill on and from the commencement date of the
Bill. This means that an offender on a supervision order
immediately before the commencement date will from the
173
commencement date be subject to the core conditions set out in
that clause.
Subclause (4) provides that an application for review or renewal
of an order referred to in subclause (1) is to be made under the
Bill, including an application for renewal or review of an order
made by a court under the superseded Act in respect of an
offender who no longer meets the eligibility criteria in clause 8 of
the Bill. These are serious sex offenders who a court has placed
on a supervision order under the superseded Act but whom will
no longer meet the eligibility criteria under the Bill because they
were sentenced for an offence that is no longer included in the
definition of serious sex offence in schedule 1 of the Bill or the
offender was sentenced in relation to a serious sex offence in the
Magistrates' Court. It is intended that the Secretary be able to
apply for a renewal of supervision order for these offenders under
the Bill until such time as their risk is reduced.
Subclause (5) provides that an application for review or renewal
of an order referred to in subclause (1), including offenders who
no longer meet the eligibility criteria in clause 8 of the Bill is to
be determined under the Bill.
Subclause (6) provides that on application for a review or
renewal of an order referred to subclause (1), if the court decides
to confirm or renew the order, the court must make an order as
the case requires under the Bill.
Clause 5 provides that the superseded Act and regulations will continue to
apply to applications for orders, renewal or review of orders
commenced under the superseded Act but not determined before
the commencement of the Bill.
Subclause (2) provides that an order made on an application or on
appeal in respect of an application referred to in subclause (1) is
to be made under the Bill.
Clause 6 provides that the superseded Act and regulations will continue to
apply to an appeal commenced under Part 7 of the superseded
Act but not determined before the commencement of the Bill,
except an order arising from the appeal which is to be made
under the Bill.
Clause 7 provides that a matter remitted by the Court of Appeal under
section 101 of the superseded Act on or after the commencement
174
day is to be treated by the court to which it is remitted as if it
were an application under the Bill.
Clause 8 provides that a victim submission made under the superseded Act
is taken to be a victim submission made under the Bill.
Clause 9 provides that on or from the commencement date of the Bill, a
warrant that has been validly issued in accordance with a
provision of the superseded Act but has not been executed is
taken to have been issued in accordance with the Bill.
Clause 10 provides that a direction or instruction given by the Authority
under the superseded Act that is in force immediately before the
commencement of the Bill is taken to be a direction or instruction
given under Part 11 of the Bill.
Clause 11 provides the continuation of holding powers in operation
immediately before the commencement of the Bill to validly
continue under the equivalent provisions of the Bill.
Clause 12 confirms that Division 3 of Part 12 of the Bill will apply to the
commencement of a criminal proceeding for a contravention of a
supervision order or interim supervision order (an offence against
clause 169) that is commenced on and from the commencement
day, irrespective of when the offence is alleged to have been
committed.
Subclause 12(2) confirms that the superseded Act continues to
apply to a criminal proceeding commenced under section 172 of
the superseded Act, for an offence against section 160 of that
Act, before the commencement day as if that Act had not been
repealed.
Subclause 12(3) provides that a failure to comply with a
condition of an order made under the supersede Act and
continued in force by clause 4 of Schedule 4, is taken to be a
failure to comply with a condition of an order referred to in
clause 169 of the Bill. The effect of subclauses 12(1) and (3)
means that a proceeding for a contravention in respect of a
supervision order made under the SSODSA and continued under
item 4 of this Schedule, is to be prosecuted in accordance with
Division 3 of Part 12 of the Bill irrespective of whether the
conduct amounting to the contravention occurs before the
175
commencement day, or is conduct that spans a period of time
before and after the commencement date, or occurs after the
commencement date.
Clause 13 confirms that the appointment of residential facility made under
the superseded Act continues under the Bill and may be amended
or revoked as if it were an appointment under clause 178 of the
Bill.
Clause 14 confirms that the approval of test procedures under section 157 of
the superseded Act are continued under the Bill and may be
amended or revokes as if it were an approval under clause 214.
Clause 15 provides that a change of name application made under Part 12 of
the superseded Act that has not been approved before the
commencement day of the Bill will lapse.
Subclause (2) provides that on and from the commencement date
an offender who is subject to a supervision order or an interim
supervision order made under the superseded Act can may make
an application for a change of name under Part 17 of the Bill.
Clause 16 provides that a member of the Post Sentence Authority holding
office immediately before the commencement day continues as a
member of the Authority on and following the commencement
day on the same terms and conditions and for the remainder of
the term specified in their instrument of appointment.
Subclause (2) provides that despite subclause (1), if a member
holds an acting appointment under section 192H of the
superseded Act, immediately before the commencement day,
continues on that acting basis on and from that day until the
expiry of the acting appointment.
Clause 17 confirms that a notice to produce or attend served under Part 13A
of the superseded Act is taken to be a notice served under
Division 2 of Part 20 of the Bill.
Clause 18 confirms that a panel established under clause 192ZH of the
superseded Act is taken to be a panel established by responsible
agencies under clause 330 of the Bill.
Confirms that a coordinated services plan agreed under Part 13B
of the superseded Act that is in effect immediately before the
commencement of the Bill is taken to be a coordinated services
plan under Part 21 of the Bill.
176
Clause 19 provides for the saving and continued operation of certain
provisions from the superseded Act arising from consequential
amendments to the Corrections Act 1986 by inserting new
section 130 into that Act.
Clause 130(1) of the Corrections Act 1986 provides that despite
the amendment of the definition of sexual offence in section 3(1)
by section 355 of the Serious Offenders Act 2018--
• the definitions of sexual offence in section 3(1) and
section 74AAB(2), (3), (5) and (7), as in force
immediately before the commencement day, continue to
apply to--
• prisoners who, on the commencement day, are
serving a sentence of imprisonment in respect of
an offence referred to in Schedule 1 to the
Serious Sex Offenders (Detention and
Supervision) Act 2009; and
• prisoners who, on the commencement day, are
on parole after having been released under
section 74, in accordance with the requirements
of section 74AAB, in respect of an offence
referred to in Schedule 1 to the Serious Sex
Offenders (Detention and Supervision)
Act 2009.
• the definitions of sexual offence in section 3(1) and
section 77(3) and (6), as in force immediately before the
commencement day, continue to apply, as the case
requires, to prisoners who, on the commencement day,
are on parole after having been released under
section 74, in accordance with the requirements of
section 74AAB, in respect of an offence referred to
in Schedule 1 to the Serious Sex Offenders (Detention
and Supervision) Act 2009.
This transitional provision is intended to continue the current
scheme of parole decision-making in respect of offenders subject
to orders made under the Serious Sex Offenders (Detention and
Supervision) Act 2009.
177
Clause 130(2) of the Corrections Act 1986 provides that despite
the amendment of paragraph (b) of the definition of criminal act
of violence in section 30A by section 355 of the Serious
Offenders Act 2018--
• a person who, before the commencement day, would
have been a person who was a victim within the
meaning of section 30A(1) is taken to be a victim within
the meaning of section 30A(1); and
• a person who was included on the victims register under
section 30C immediately before the commencement day
remains on the victims register, on and from the
commencement day, as if the person was a victim
within the meaning of section 30A(1).
This transitional provision has the intention of continuing the
current treatment of victims in respect of offences referred to in
schedule 1 to the Serious Sex Offenders (Detention and
Supervision) Act 2009 under the Act.
Clause 130(3) of the Corrections Act 1986 provides that the
commencement day for the transitional provisions in this clause
is the day on which section 355 of the Serious Offenders
Act 2018 comes into operation.
Clause 20 despite consequential amendments made to section 152(2)(f) of
the Disability Act 2006, by clause 345 of the Bill, replacing
references to the superseded Act with the Bill, section 152(2)(f)
of the Disability Act 2006 will continue to apply to offenders on
orders continued in force under subclause 4(1) of Schedule 4 of
the Bill.
Clause 21 despite consequential amendments made to 10AB of the
Sentencing Act 1991, by clause 364 of the Bill, by replacing
references to order under the superseded Act with orders made
under the Bill, section 10AB of the Sentencing Act 1991 will
continue to apply to offenders on orders continued in force under
subclause 4(1) of Schedule 4 of the Bill.
Clause 22 despite consequential amendments made to 61C(3)(b) and 70J of
the Sex Offenders Registration Act 2004 by clause 365 of the
Bill, by replacing references to orders made under the superseded
Act with orders made under the Bill, those sections of the Sex
178
Offenders Registration Act 2004 will continue to apply to
offenders on orders continued in force under subclause 4(1) of
Schedule 4 of the Bill.
Clause 23 despite consequential amendments to section 8(2)(aa)
Surveillance Devices Act 1999 by clause 366 of the Bill, by
replacing references to orders made under the superseded Act
with orders made under the Bill, section 8(2)(aa) of the
Surveillance Devices Act 1999 will continue to apply to
offenders on orders continued in force under subclause 4(1) of
Schedule 4 of the Bill.
Clause 24 despite consequential amendments to section 28LAE(1) of the
Wrongs Act 1958 by clause 370 of the Bill, by replacing
references to orders made under the superseded Act with orders
made under the Bill, section 28LAE(1) of the Wrongs Act 1958
will continue to apply to offenders on orders continued in force
under subclause 4(1) of Schedule 4 of the Bill.
Clause 25 provides for the making of regulations of a savings and
transitional nature that may have effect despite anything to the
contrary in the Bill.
179